Gillis v. Gillis

• Decision Date: 11 March 1895
• Citation: 23 S.E. 107,96 Ga. 1
• Parties: GILLIS et al. v. GILLIS et al.
• Court: Georgia Supreme Court

23 S.E. 107

96 Ga. 1

GILLIS et al. v. GILLIS et al.

Supreme Court of Georgia

March 11, 1895

Syllabus by the Court.

1. Construing together sections 2414 and 2415 of the Code, which relate to the execution and attestation of wills, the true meaning of the phrase "provided he can swear to the same," as used in section 2415, with reference to the competency of an illiterate or infirm witness, is that such a witness is competent to attest by his mark if, at the time of attesting, he is under no legal disability to testify as a witness; and it is not essential to his competency as an attesting witness to a will that he should be able to swear to or identify his mark at the time the will is offered for probate.

2. Where, upon the trial of an issue of devisavit vel non, a subscribing witness to the will, from want of memory or other cause, is unable or unwilling to testify to its attestation by himself or by the other subscribing witnesses, or to the execution of the will by the testator, or to the fact that the testator was mentally capable of making a will, or where a subscribing witness in his evidence denies the existence of any of these facts, the same may be proved by any competent witness having knowledge thereof, although the latter was not a subscribing witness to the will.

3. The law of mutual wills was not involved in the present case; the evidence warranted the verdict; and there was no error in denying a new trial.

Error from superior court, Emanuel county; R. L. Gamble, Judge.

John Gillis and others presented the will of Sarah Gillis deceased, for probate. Proponents had judgment, and caveators bring error. Affirmed.

Williams & Smith, Hines & Felder, and A. H. Davis, for plaintiffs in error.

Cain & Polbill, A. Herrington, T. M. Saffold, H. R. Daniel, and Evans & Evans, for defendants in error.

LUMPKIN J.

The nominated executors of the alleged last will of Sarah Gillis propounded the same for probate, and a caveat was filed by some of her heirs at law. On the trial in the superior court to which court the case had been carried by appeal, there was a verdict for the propounders, and the caveators bring up for review a judgment overruling their motion for a new trial. Besides the general grounds that the verdict was contrary to law and the evidence, and that the court erred in refusing to grant a nonsuit, the motion contained special grounds raising certain questions, the nature of which is disclosed by the headnotes and this opinion.

The paper purporting to be the will was executed by the testatrix on the 12th day of March, 1873. It bears the names of four witnesses, but it was conceded that the last of them signed his name some time after the execution of the paper by the testatrix and its attestation by other witnesses, and it does not appear that he signed in her presence. The appearance therefore, of the name of this witness upon the paper, counts for nothing in determining the question of the legality of its execution. Accordingly, the fact that he signed will be ignored altogether; and it will be understood that, in speaking of the subscribing witnesses to the paper, reference to the other three only is intended. One of these signed by making her mark. Another died before the testatrix. The usual and formal attestation clause was used. The paper was offered for probate soon after the death of the testatrix, and about 20 years after its execution and attestation. At the time of probate, the two subscribing witnesses then in life were produced. The one who wrote his own name proved the due execution of the paper as a will. The signature of the deceased witness was shown to be in his handwriting. The illiterate witness testified that she had no recollection of attesting the will, and could not swear to the making of her mark. At the same time, however, she did not expressly swear that she did not attest by her mark the paper propounded.

1. The first and leading question is, was the paper legally attested as a will? The execution and attestation of written wills in this state, as to both real and personal property, is provided for in sections 2414 and 2415 of the Code. Section 2414 reads 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 competent witnesses." Section 2415 declares 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." Section 2414 was codified from 29 Car. II. c. 3, § 5, known as the "Statute of Frauds," in reference to devises of real property (Cobb's Dig. p. 1128; Huff v. Huff, 41 Ga. 701), and from an act of January 21, 1852 (Acts 1851-52, p. 104), which prescribes that wills bequeathing personal property shall be executed as are wills devising real property. The statute of frauds and our own act of 1852 each uses the word "credible," and section 2414 of the Code uses the word "competent," as to the three or more witnesses required to attest a will. These two words are, as here used, synonymous. Hall v. Hall, 18 Ga. 40. They mean, in this connection, witnesses who are competent at the time of attestation to testify in a court of justice. Thus, in one of the earlier English decisions, it was said: "The true time for his credibility is the time of attestation; otherwise, a subsequent in famy, which the testator knows nothing of, would avoid his will." Holdfast v. Dowsing, 2 Strange, 1253. In Sears v. Dillingham, 12 Mass. 358, the court, after stating that an executor was not a competent witness to prove the execution of a will, said: "But a will to which such an executor is a subscribing witness may be proved by the testimony of the other witnesses, he having been a credible witness within the statute at the time of his attestation, and having become incompetent only by accepting a trust." In Patten v. Tallman, 27 Me. 17, it was said: "The competency of an attesting witness to a will is not to be determined upon the state of facts existing at the time when the will is presented for probate, but upon those existing at the time of the attestation." So very pertinent, in this connection, is the text of Schouler on Wills, that we make an extended extract: "Upon common-law principle, the qualification or disqualification of a witness is usually raised with reference to the time when he is called upon to testify, nor is competency at that date to be left unconsidered; as where, for instance, a witness who subscribed while in sound mind has become insane by the time the probate of the will is at issue, in which case, of course, his testimony cannot be taken. But his incompetency at this latter date does not defeat the will, whose attestation and subscription was a sort of testifying, such as the peculiar transaction called for. To surround himself with a specified number of witnesses at that time competent was all that any testator could do in compliance with the statute requirements; and, what was then a proper execution in all respects taking place, a will was produced whose validity could never be impeached for informality. Hence the rule, which reason should now pronounce the universal one, so far as the question remains a material one at all, that the competency of witnesses, like that of the testator, is tested by one's status at the time when the will was executed. If, therefore, a sufficient number of witnesses attest and subscribe properly who at that date are competent, the will remains valid, although death or supervening disability may render any or all of them incapable in fact of testifying by the time the will is offered for probate. In other words, the inconvenience of this last situation is purely casual and incidental, and without direct prejudice to the will itself, which might, indeed, be established on mere proof of handwriting, where the instrument appeared on its face genuine and formal." Section 351. See, also, section 350, and Jarm. Wills (Rand. & T.'s Ed.) p. 225; Higgins v. Carlton, 28 Md. 115, 92 Am.Dec. 666, and note on page 680; Hawes v. Humphrey, 9 Pick. 350, 20 Am.Dec. 481, and note on page 488; Amory v. Fellowes, 5 Mass. 219; Carlton v. Carlton, 40 N.H. 14; In re Holt's Will (Minn.) 57 N.W. 219.

A witness who signs by his mark, if so capable of testifying is just as competent a witness under the statute of frauds, our act of 1852, and section 2414 of the Code, as one likewise capable of testifying who writes his own name. This is settled by an unbroken line of authorities. Harrison v. Harrison, 8 Ves. 185; Addy v. Grix, Id. 504; Davies v. Davies, 9 Adol. & E. (N. S.) 648; Bailey v. Bailey, 35 Ala. 687; Garrett v. Heflin (Ala.) 13 So. 327; Horton v. Johnson, 18 Ga. 397; Montgomery v. Perkins, 2 Metc. (Ky.) 448; Lord v. Lord, 58 N.H. 7; Compton v. Mitton, 12 N. J. Law, 70; Morris v. Kniffen, 37 Barb. 336; Prigden v. Prigden, 13 Ired. 260; Simmons v. Leonard, 91 Tenn. 183, 18 S.W. 280; Jesse v. Parker, 6 Grat. 57; 4 Kent, Comm. (8th Ed.) 575; 10 Bac. Abr. 491; Williams, Ex'rs (3d Am. Ed.) 79; Beach, Wills, § 41; 1 Jarm. Wills (Rand. & T.'s Ed.) 212, 214; Schouler, Wills, 331; 1 Am. & Eng. Enc. Law, 941. And, indeed, our Code expressly declares that 'signature' or 'subscription' includes the mark of an illiterate or infirm person." Section 5. The mark is the signature of the witness. Cent. Dict. word "Signature"; 14 Am. & Eng. Enc. Law, 457, word "Mark"; And. Law Dict. words "Mark" and "Signature." The subscription of a witness, whether in his own handwriting or by his mark, does not, of course, ipso facto...