Smith v. Smith , 151 Ga. 150 ( 1921 )

Hill, J.

Where a propounder offered for probate in tne court of ordinary a paper purporting to be a copy of the will of the testatrix, which he sought to establish in lieu of the original, which was alleged to have been burned subsequently to the death of the testatrix; and where, on the trial of the case on appeal in the superior court, it was admitted that one of the witnesses to the will was dead and the other two witnesses were in life, but the two living witnesses were not produced (it being admitted, however, that they would testify, if present, that they had no recollection of witnessing the will offered for probate, though they may have done so), a verdict setting up the will and admitting it to probate was unauthorized by the evidence, there being no proof of the execution of the will, though evidence was adduced to show the existence and contents of the will and its destruction by fire after the death of the testatrix. Civil Code (1910), § 3863; Scott v. Maddox, 113 Ga. 795 (39 S. E. 500, 84 Am. St. R. 263) ; Mosely v. Carr, 70 Ga. 333.

Judgment reversed.

All the Justices concur.