Norton v. Georgia R. R. Bank & Trust Co.
| Decision Date | 06 January 1982 |
| Docket Number | No. 38011,38011 |
| Citation | 285 S.E.2d 910,248 Ga. 847 |
| Court | Georgia Supreme Court |
| Parties | J. Richard NORTON, et al. v. GEORGIA RAILROAD BANK & TRUST COMPANY, Exr. |
Thomas R. Burnside, Jr., Burnside & Wall, Augusta, James C. Abbot, Abbot & Murphy, Louisville, for J. Richard Norton et al.
Wyck A. Knox, Jr., Knox & Zacks, William R. McCracken, Augusta, for Georgia R. R. Bank & Trust Co., exr.
The caveators appeal the order of the superior court granting the propounder's motion for summary judgment and admitting a will to probate in solemn form.
The will created trusts for the benefit of the widow and six of the testator's children and named the propounder, Georgia Railroad Bank and Trust Company, as trustee and executor. The will recited that no provision was made for three of the sons, because they had already received fair shares of the estate.
The will was witnessed by the attorney who prepared it (and who predeceased the testator) and by one of the caveators. A codicil was witnessed by the same attorney and by an acquaintance of the testator. The codicil corrected a clerical error in the will involving an incorrect legal citation.
The will and codicil were probated in common form in probate court. Thereafter, the three sons filed the caveat contending that the will and codicil were not properly executed, and were the result of undue influence of Georgia Railroad Bank and Trust. The propounder and caveators expressly waived hearing before the probate court on the solemn form petition, and agreed to appeal to the superior court.
1. Caveators cite as error the fact that the available witnesses were not called to testify in the solemn form proceeding in superior court. They refer to earlier decisions of our courts which held that the propounder is required to produce all subscribing witnesses within the jurisdiction of the court. Bowen v. Neal, 136 Ga. 859, 860, 72 S.E.2d 340 (1911); Bloodworth v. McCook, 193 Ga. 53, 54, 17 S.E.2d 73 (1941); Miller v. Miller, 104 Ga.App. 224, 121 S.E.2d 340 (1961). These cases precede our decision in Taylor v. Donaldson, 227 Ga. 496, 181 S.E.2d 340, cert. denied, 404 U.S. 805, 92 S.Ct. 163, 30 L.Ed.2d 38 (1971), which held that the summary judgment procedures of the 1966 Civil Practice Act () are applicable to solemn form probate in superior court.
Earlier courts based the conclusion that subscribing witnesses must be present upon an interpretation of Code Ann. § 113-602, Ga.L.1859, p. 34, as amended, which provides that: "[P]robate in solemn form is the proving of a will ... by all witnesses in life and within the jurisdiction of the court." Following Taylor v. Donaldson, supra, a propounder is required only to prove the will in accordance with the Georgia Civil Practice Act, which does not of necessity require personal appearance. The trial court did not err in admitting the will to probate in solem form without the personal appearance and testimony of subscribing witnesses.
2. The trial court did not err in considering the transcript of the common form probate proceeding on motion for summary judgment. "[T]he undisputed testimony of witnesses admitted in probate court ... will sustain the superior court's grant of summary judgment admitting the will to probate." Tony v. Pollard, 248 Ga. 86, 90, 281 S.E.2d 557 (1981).
The caveators argue that the transcript should be excluded as the common form probate proceeding allowed no opportunity for cross-examination. This argument is without merit, as affidavits in support of motions for summary judgment are not subject initially to cross-examination.
3. Caveators contend that there are genuine issues of fact as to whether the will was properly attested by Richard Norton, one of the caveators.
Code Ann. § 113-301(Ga.L. 1851 -2, p. 104, as amended) provides: "All wills ... shall be attested and subscribed in the presence of the testator by two or more competent witnesses." Under our law, attestation of a will requires that the testator must either sign in the presence of the witness or acknowledge his signature to the witness. Shewmake v. Shewmake, 144 Ga. 801, 819-820, 87 S.E. 1046 (1916); Cornelius v. Crosby, 243 Ga. 26, 27, 252 S.E.2d 455 (1979). Acknowledgment by the testator need not be explicit, but may be inferred from conduct. Shewmake, supra, 144 Ga. at 815, 87 S.E. 1046; Glenn v. Mann, 234 Ga. 194, 214 S.E.2d 911 (1975).
Richard Norton testified at the common form probate hearing that he was not in the house when the testator, his father, signed the will. He later entered the living room and sat at a table "right by" the testator, who sat across from the attorney. The attorney asked Norton to witness the instrument, and the witness signed it in the presence of the testator.
This evidence is sufficient to establish acknowledgment. Norton did not contradict or deny his prior testimony, but seeks to create a jury issue through his conclusion by affidavit that the testator did not "ever acknowledge to me the signature which appears on [the will]." Unsupported by specific allegations of fact, that contention cannot avoid summary judgment. Code Ann. § 81A-156(e); Clements v. Warner Robins Supply Co., Inc., 235 Ga. 612, 615, 221 S.E.2d 35 (1975); Healthdyne, Inc. v. Henry, 144 Ga.App. 52, 54, 240 S.E.2d 259 (1977); Sasser & Co. v. Griffin, 133 Ga.App. 83, 85, 210 S.E.2d 34 (1974).
We agree with the trial court that there is no genuine factual issue as to acknowledgment.
4. The caveators contend...
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