Argo v. Geise

• Decision Date: 15 October 1968
• Docket Number: No. 24791,24791
• Citation: 224 Ga. 695,164 S.E.2d 134
• Parties: John Thomas ARGO v. Eugenia P. GEISE.
• Court: Georgia Supreme Court

Page 134

164 S.E.2d 134

224 Ga. 695

John Thomas ARGO v. Eugenia P. GEISE.

No. 24791.

Supreme Court of Georgia.

Oct. 15, 1968.

Syllabus by the Court

Where a testatrix neither signs nor acknowledges her signature in the presence of the attesting witnesses to a will the writing is insufficient to create a valid will.

The sole question for consideration in this case is whether the trial court erred in granting a motion for summary judgment against the probate of a will. The purported will was handwritten by the alleged testatrix, and the only place where her name appears is in the opening paragraph.

The contention of the caveatrix is that the placing of the testatrix's name at the beginning of the will is an insufficient execution, that the witnesses never saw the testatrix's name on the will before they signed it, and that the testatrix never acknowledged the same to be her signature before the witnesses signed.

Claude N. Morris, Americus, for appellant.

Smith, Crisp & Hargrove, Henry L. Crisp, Americus, for appellee.

NICHOLS, Justice.

1. It is only necessary to consider whether the signature was acknowledged by the testatrix. While the record contains affidavits of each subscribing witness that the testatrix did not affix her own signature to the writing and did not acknowledge her name appearing in the body of the writing at the time it was signed by the three witnesses in her presence and in the presence of each other, one of the three witnesses submitted a further affidavit in which she swore: 'She informed us that she wanted us to witness her will. She handed us a piece of paper that was folded in such a manner that we could see no writing on it and Lucille S. Smith, Frances T. Smith, and I signed our names on it. This was the same piece of paper or papers that was filed in the Court of Ordinary, Sumter County, by John Thomas Argo as the Last Will and Testament of the said Betty C. McKee. Said papers now bearing the filing date of February 8, 1968, over the signature of Eugene Horne, Ordinary. I examined said papers recently at a hearing in the Court of Ordinary before the said Eugene Horne when said papers were offered as the Last Will and Testament of Betty C. McKee. When I examined said papers at said hearing I recognized my signature thereon and at that time said papers were unfolded and I saw there was other writing thereon. At said hearing I saw 'Betty McKee' handprinted on said papers as they were unfolded and I am not saying that the said 'Betty C. McKee did not intend this to be here signature, it was on the paper or papers that Lucille S. Smith, Frances T. Smith, and I signed at the instance and request of Betty C. McKee and that is all I know about it. Betty C. McKee was of sound and disposing mind and memory at the time the three of us aforesaid signed our names to said paper or papers. I will not state there was no writing or signature on the paper Betty C. McKee asked the three of us aforesaid to witness as her will, but there was none visible because of the manner in which it was folded.'

'The testator must either sign in the presence of the attesting witnesses or acknowledge his signature to each of them in whose presence he did not sign. Webb v. Fleming, 30 Ga. 808(1), 76 Am.Dec. 675; Wood v. Davis, 161 Ga. 690(1), 131 S.E. 885.' Thornton v. Hulme, 218 Ga. 480, 128 S.E.2d 744. Thus under the facts of the present case where no witness actually saw the testatrix sign the will and where the testatrix did not acknowledge her signature thereon the trial court did not err in granting the motion of the caveatrix for a summary judgment.

Judgment affirmed.

All the Justices concur except NICHOLS, J., who dissents.

NICHOLS, Justice (dissenting).

The above decision was prepared in accordance with the opinion of the majority of the court but I must dissent from the judgment affirming the grant of the summary judgment.

Code § 113-301, while amended in 1958 to lower the required number of witnesses from three to two, has remained basically the same since it was first adopted in 1851 (Ga.L.1851-52, p. 104), and even then was a mere application to personalty of the law relating to realty.

The decisions of the court based upon such language are not without inconsistency. The decision in Thornton v. Hulme, 218 Ga. 480, 128 S.E.2d 744, relied upon by the majority, states that it is necessary for the witnesses to see the testator sign or for the testator to acknowledge such signature. This is a full bench decision but as will be shown it is in conflict with older full bench decisions.

In Webb v. Fleming, 30...