Glenn v. Mann

• Decision Date: 17 April 1975
• Docket Number: No. 29685,29685
• Parties: Barbara Bennett GLENN v. William H. MANN.
• Court: Georgia Supreme Court

Page 911

214 S.E.2d 911

234 Ga. 194

Barbara Bennett GLENN v. William H. MANN.

No. 29685.

Supreme Court of Georgia.

April 17, 1975.

Rehearing Denied May 8, 1975.

Hansell, Post, Brandon & Dorsey, Hugh M. Dorsey, Jr., Richard M. Kirby, Atlanta, for appellant.

Davis, Matthews & Quigley, Baxter L. Davis, William M. Matthews, Atlanta, for appellee.

Syllabus Opinion by the Court

NICHOLS, Chief Justice.

This is an appeal from an order of the Superior Court of Fulton County adopting the judgment of the Fulton County Court of Ordinary which declared a propounded will valid and admitted it to probate in solemn form. The appeal calls into question the validity of the will's execution.

The propounder, William H. Mann, offered for probate in solemn form the alleged will of Daniel P. Bennett, Jr. The will was handwritten by the testator; it stated that it was his last will and testament and was dated August 7, 1972. It contained no attestation clause. Below his signature appeared the word 'Witness' followed by the signatures of James P. Goodman and Charlene Kovacs. The testator's sister and sole heir at law, Barbara Bennett Glenn, filed a caveat alleging invalid execution, undue influence, fraud, misrepresentation, monomania and mistake of fact. After a hearing the court of ordinary overruled the caveat and ordered the will admitted to probate in solemn form. The caveatrix then appealed to the Superior Court of Fulton County. Both parties moved for summary judgment. On the basis of the affidavits, depositions, interrogatories, and the transcript of the hearing in the Court of Ordinary, the Superior Court granted summary judgment for the propounder and adopted the judgment of the Court of Ordinary admitting the will to probate in solemn form. The caveatrix appeals. For reasons appearing below, the judgment will be affirmed.

The caveatrix' principal contentions on appeal concern the validity of the will's execution. In order to fully examine the issues she raises, it is necessary to set out in some detail the testimony relating to the execution and the physical setting in which it took place. The uncontradicted evidence showed that the testator entered the branch building of the First National Bank of Atlanta on 26th Street the morning of August 7, 1972. He approached the desk of James P. Goodman, with whom he was personally acquainted, and was given permission to use a vacant desk next to Goodman's to take care of some personal business. The desk which the testator occupied was located approximately six feet directly to the left of Goodman's and faced in the same direction. The testator made a few phone calls and did some writing. Goodman testified that 15 to 20 minutes after the testator's arrival, he 'asked me if I would witness his will . . .' Goodman stood next to the desk the testator occupied and read enough of the document to satisfy himself that it was a will. He then signed the will while standing approximately a foot from the testator. Goodman testified that he did not recall whether he saw the testator sign the will, but he did remember seeing the testator's signature on the will when he, Goodman, signed.

According to Goodman's testimony, the testator then asked him to get someone else to witness the will. Goodman took the will to Charlene Kovacs who was seated at a desk ten feet directly in front of and facing in the same direction as the desk at which the testator was seated. Goodman told Kovacs that the document was the testator's will and asked her to witness it. Kovacs signed the will which had been placed at the back left-hand corner of her desk. Goodman testified that to the best of his recollection, the testator did not speak with Kovacs or communicate with her in any way. Goodman also testified that to the best of his recollection the testator remained seated at the desk to the rear of Kovacs' desk while Kovacs signed the will. Goodman did not know what the testator was doing while Kovacs signed the will. To the best of Goodman's recollection, the testator was sitting at the desk to the rear of Kovacs' desk when Goodman took the will to Kovacs and was sitting there when Goodman returned the will to him. The testator's view of the will as Kovacs signed would have been obstructed by Kovacs, by Kovacs' chair, and by a typewriter which was placed on a stand protruding back from the back left-hand corner of Kovacs' desk. Given the 3-foot width of the desk occupied by the testator, he would have been sitting approximately 13 feet from the will as Kovacs signed it. There was no wall or vertical obstruction between Kovacs and the testator. The desks were located in an open area of the bank. Approximately two to three minutes elapsed between the time Goodman signed and the time he returned the will to the testator after Kovacs had signed.

Kovacs testified that she had formerly worked in the same office with the testator and knew who he was. She only vaguely remembered his having entered the bank that day, and other than the fact that she recognized her signature appearing on the will, she had no recollection of anything transpiring in connection with the will's execution.

1. The caveatrix contends that the testator did not acknowledge his signature to Kovacs; therefore, she did not qualify as an attesting witness in terms of Code Ann. § 113-301, as amended. That statute provides: 'All wills (except nuncupative wills) disposing of realty or personalty shall be in writing, signed by the party making the same or by some other person in his presence and by his express direction, and shall be attested and subscribed in the presence of the testator by two or more competent witnesses.' The general rule is that '(t)o constitute a legal execution of an instrument purporting to be a will, under (Code § 113-301, as amended), it is absolutely necessary that the attesting witnesses either actually see the testator sign the instrument, or that the testator acknowledge his signature thereto either expressly or impliedly.' Wood v. Davis, 161 Ga. 690, 693, 131 S.E. 885, 886. Accord, Thornton v. Hulme, 218 Ga. 480(1), 128 S.E.2d 744. Of course, the acknowledgment must be made in the presence of the witnesses. See Shewmake v. Shewmake, 144 Ga. 801(1, 2), 87 S.E. 1046; Thompson et al. v. Davitte et al., 59 Ga. 472(8); Webb v. Fleming, 30 Ga. 808(1).

The caveatrix does not question the validity of Goodman's attestation of the will. With respect to the witness Kovacs, the caveatrix contends that it was necessary that the testator himself acknowledge his signature and in this regard argues that Goodman's statement to Kovacs that the document was the testator's will and his request to her that she sign did not constitute an acknowledgment by the testator himself. In support of her contention, caveatrix refers to the decisions in Waldrep v. Goodwin, 230 Ga. 1, 195 S.E.2d 432; Wood v. Davis, supra; Slade v. Slade, 155 Ga. 851, 118 S.E. 645; Shewmake v. Shewmake, supra; and, Brown v. McBride et al., 129 Ga. 92, 58 S.E. 702. The Waldrep case, however, did not involve the question under consideration here. In Wood, the evidence showed that the testator remained seated in a car while one of the witnesses took the will to one Peed who was located inside a building near the car. The witness identified the document to Peed as the testator's will and asked him to sign. Although the decision stated that there was evidence to show that the testator's position was such that he could have seen Peed sign, it held, without discussing the point, that the testator did not acknowledge his signature to Peed. The Slade, Shewmake, and Brown cases represent authority contrary to the caveatrix' position. In Shewmake v. Shewmake, supra, 144 Ga. at p. 815, 87 S.E. at p. 1047, this court stated that, 'any acknowledgment before (the witnesses) of (the testator's) signature to the instrument is sufficient, and that the 'due acknowledgment' need not be embodied in any particular verbal formula, but it may be inferred from conduct which amounts to an acknowledgment of the signature.' The court held that although the testator never showed the witnesses his signature, his statement to them that 'this is my will' constituted a sufficient acknowledgment of the will, the signature included. For a similar holding see Thompson et al. v. Davitte et al., supra, 59 Ga. at pp. 480-81. In Brown v. McBride, supra the recital of facts showed that one of the witnesses was requested by a person, not a party to the transaction, to witness the testator's will. Although the court did not discuss the issue under consideration here, it upheld the admission of the will to probate. In the decision in Slade v. Slade, supra, (Hn. 2b), this court held: 'Attestation of a will by the subscribing witnesses, signed by them in the presence of the testatrix and with her knowledge may be treated as the equivalent of a request by her that these persons subscribe their names as witnesses to the paper, and especially when such testatrix is shown to have been seeking witnesses for the purpose of having them attest her will.' For a similar holding see Huff v. Huff, 41 Ga. 696(2). In the present case, the evidence showed that when Goodman stated to Kovacs that the document was the testator's will and requested her to sign, both Goodman and Kovacs were positioned some 10 to 13 feet in front of the testator, within his clear view, and where he could have heard Goodman's statement and request. The testator's acquiescence in the statement and request, made in his presence, amounted to an acknowledgment of the will by the testator himself.

The caveatrix contends, however, that even if the testator did acquiesce in Goodman's actions and thereby adopted them as his own, it was necessary to a proper acknowledgment that Kovacs know of the testator's presence and that she be aware of some act on his part from which she could infer his assent. Assuming, without deciding, that the caveatrix'...