Duffie v. Corridon

• Decision Date: 31 December 1869
• Citation: 40 Ga. 122
• Parties: OWEN DUFFIE et al, propounders, plaintiffs in error. v. WILLIAM CORRIDON, caveator, defendant in error.
• Court: Georgia Supreme Court

40 Ga. 122

OWEN DUFFIE et al, propounders, plaintiffs in error. v. WILLIAM CORRIDON, caveator, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, December Term, 1869.)

Attestation of Wills. Before Judge Johnson. Muscogee Superior Court. May Term, 1869.

In 1868, Mrs. Corridon, being in extremis, wished to make her will, conveying realty and personalty. It was written and read over to her; she was satisfied with it, and declared it to be her will. Four persons (including the scrivener) who were present, signed it as witnesses. Next morning the scrivener remembered that she had not signed it. He went back to her to have it signed. Two of the original witnesses being absent, he took the other one, and a different person, again read over the paper to her, and she again said it was her will, and signed it by her mark in presence of these three persons. The names of the absent original witnesses were erased, the new person subscribed his name as a witness in her presence, and that of the others, and they, without re-writing their names, each acknowledged his signature to be genuine, and adopted it in presence of testator and the other witness.

She died, and this paper was propounded by Duffie et al, *as her will. This was resisted upon several grounds, among which was, that said paper had never been so signed and attested as to make it a will. The facts aforesaid were shown. The Court charged the jury that if, on the first day, said paper was read over to her, and sheacknowledged it to be her will in presence of four witnesses, who then and there subscribed their names thereto as subscribing witnesses, and she omitted to sign her name to the paper, or to authorize another to do it for her, and on the next day two of said subscribing witnesses being absent and two present, the names of those absent were erased, and the paper was read over to her in presence of the two witnesses of the first day, and of another witness, and then and there she signed her name, and the new witness signed his name, and the two other witnesses, without re-writing their names, then and there acknowledged and adopted as their signatures the signatures which they had made the day before, and all other requisites were complied with, such attestation was not sufficient to make said paper a good will The jury found against the paper. A motion for new trial was overruled. Error is assigned upon said charge, (minor points being waived.)

Moses & Gerrard, for plaintiffs in error, said an adoption of previous signatures of testator is good: 1st Vesey, Jr., 12; 2 Vesey, Sr., 454; 6 V. & B., 362; 6 Bing., 310; 17 Peck, 363; 30 Ga. R., 808 Under Statute (1 Vic.,) such adoption by witness of his previous signature is bad: 7 Eccl. R., 416-17-18, 429, 430. There is a distinction between acknowledging a signature and acknowledging a will: 10 Paige's Ch. R., 92. This refinement not adopted in America: Redfield on Wills, 229, 230; 2 Grattan, 439, 67; 6th Grattan, 57; 16 B. Munroe, 102; 1 B. Munroe, 116; 24 Penn. S. R., Flaming's Will; 25 Conn. R., 464; 1 Jarman on Wills, 77; Walker v. Hunter, 17th Ga. R., 364; Redfield on Wills, 230; 1 Rob., 772; Jarman on Wills, (Ed. 1861,) 77; Irwin's Code sec, 2442; 30th Ga. R., 32.

James M. Russell, for defendant, in reply, cited Irwin's Code, secs. 2379, 2380; Statute of Frauds, 29 Car., 11, c. 3, *sec. 5; Statute, 1 Vic, c. 26, sec. 9; 6 Hill's (N. Y.) R., 303; 1 M. & W. R., 168; 1 Gr. Ev., sec. 569, 569, (a); 11 Allen (Mass.) R., and cases cited; 8 H. E. Cas., 160; Redfield on Wills, 229, 230, 243, notes; 13th Curtis, 131, 341, 374, 44, 429, 537; 1 Jar. on Wills, 77; 1 S. & S., 132; 1 Rob., 772; 2 Rob., 311; 18 Ga. R., 396; 9 Burr, 54; 10 Watts, 153; Wheat., 395; 8 Watts & S., 21, 26; 2 Casey, 219.

McCAY, J.

The will in this case was read over to the testatrix, and was signed by three witnesses, but not by the testatrix. This, as we suppose, was a mere mistake, but it does not appear whether they thought this was sufficient, or whether the failure of Mrs. Corridon to sign was a pure accident. At any rate, when, next day, it was noticed that the testatrix had not signed, he scrivener procured two of those who had already signed, and a third, and the testatrix signed the will in thepresence of these three. The new man signed his name, and the two others acknowledged their signatures made the day before. Was this a sufficient signing and attestation under the statute? The words of our Code, section 2379, are as follows: "All wills, (except nuncupative wills,) disposing of realty or personalty, must be in writing, signed by the party making the same, or by some other person in his presence, and by his express directions, and shall be attested and subscribed in the presence of the testator by three or more creditable witnesses."

Section 2370 provides, "that a witness may attest by his mark, provided he can swear to the same, but one witness cannot subscribe the name of another, even in his presence and by his direction."

Nothing is better settled than that a will, to be good, must be executed precisely according to the statute. Wills divert the property of the testator out of the channel fixed by law, and the law permitting this to be done must be followed. What is it the witnesses to a will attest? Principally the signature. The witnesses need not know the contents of the *will. The testator may merely acknowledge his signature before them, or may sign it, without saying to them it...