Lane v. Lane

• Decision Date: 16 May 1906
• Citation: 54 S.E. 90,125 Ga. 386
• Parties: LANE v. LANE.
• Court: Georgia Supreme Court

54 S.E. 90

125 Ga. 386

LANE v. LANE.

Supreme Court of Georgia

May 16, 1906

Syllabus by the Court.

Under the decision in Brooks v. Woodson, 13 S.E. 712, 87 Ga. 379, 14 L.R.A. 160, "witnesses to a will must subscribe their names as witnesses after the will is signed by the testator; there being nothing to attest until his signature has been annexed. It makes no difference that the signing and attestation are each part of one and the same transaction." This ruling is adhered to, and controls the present case.

Error from Superior Court, Cobb County; Geo. F. Giber, Judge.

W. W Lane propounded a will for probate, and W. T. Lane filed objections. From an order refusing probate, the propounder brings error. Affirmed.

A will was propounded for probate in solemn form. It appeared from the testimony introduced by the propounder that the paper propounded was not signed by the alleged testatrix until after it was signed by the witnesses thereto, though there was evidence to the effect that the signing by the testatrix and by them all was a part of the same transaction; she having signed just after the last witness had subscribed his name. The presiding judge held that the paper was not valid as a will, and not entitled to probate, and directed a verdict accordingly. The propounder excepted.

J. S James, for plaintiff in error.

J. E McGelley, for defendant in error.

LUMPKIN J. (after stating the facts).

This case is controlled by the decision in Brooks v Woodson, 87 Ga. 379, 13 S.E. 712, 14 L.R.A. 160, and it in turn rests upon that in Duffie v. Corridon, 40 Ga. 122. We are asked to review and reverse those decisions, but we are content to adhere to them. It is true that there is a conflict of rulings as to whether a will is valid if the signing by the testator and the attestation by the witnesses are each a part of the same transaction, although the testator may not sign first. In the opinion in the case above cited, Bleckley, Chief Justice, said: "To witness a future event is equally impossible, whether it occur the next moment or the next week." The note following the decision collects a number of authorities and shows that the view taken in this state by no means stands alone, but has the support of other courts of last resort. See, also, Marshall v. Mason, 57 N.E. 340, 176 Mass. 216, 79 Am.St.Rep. 305; Simmons v. Leonard, 91 Tenn. 183, 18 S.W. 280, 30 Am.St.Rep. 875; Welty v. Welty, 8 Md. 15....