Waldrep v. Goodwin

• Decision Date: 04 January 1973
• Docket Number: No. 27402,27402
• Citation: 195 S.E.2d 432,230 Ga. 1
• Parties: Hubert WELDREP v. Buena Waldrep GOODWIN.
• Court: Georgia Supreme Court

Page 432

195 S.E.2d 432

230 Ga. 1

Hubert WELDREP v. Buena Waldrep GOODWIN.

No. 27402.

Supreme Court of Georgia.

Jan 4, 1973.

Claude V. Driver, Buchanan, for appellant.

Howe & Howe, Donald B. Howe, Jr., Tallapoosa, for appellee.

Syllabus Opinion by the Court

HAWES, Justice.

On May 6, 1971, this court decided Waldrep v. Goodwin, 227 Ga. 560, 181 S.E.2d 837 (1971), affirming the admission to probate of a will of Mrs. Muriel Waldrep. Subsequently, the caveator in that case, Hubert Waldrep, filed a petition before the Ordinary of Haralson County for the probate of a purportedly later-discovered will of his deceased wife. His daughter, Buena Waldrep Goodwin, the propounder of the earlier will, was served on May 26, 1971, and thereafter filed her caveat, alleging in opposition to probate that Muriel Waldrep, her mother, was not of sound mind when the will was made, that she had not made the will voluntarily but under the undue influence of Hubert Waldrep, and that she had in any event not signed the will, such signature as appearing being a forgery. Following a hearing and an adverse decision, Buena Waldrep Goodwin appealed to the superior court and moved for summary judgment, relying on the pleadings and transcript of the testimony in the inferior court. The parties submitted the case for decision on the motion for summary judgment on this record, and the trial court granted summary judgment judgment in favor of the caveatrix. The present appeal is from that judgment and presents for resolution the substantive question whether in the execution of a will any priority should be assigned the signatures of testator or testatrix and of witnesses when all sign contemporaneously and in the presence of each other. We believe there should not, and in so ruling reverse the trial court's award of summary judgment.

1. The elemental principle should be noted at the outset that once a party in the position of a defendant who is a movant for summary judgment pierces the pleadings of one in the position of a plaintiff and shows to the court that one essential element under any theory of recovery is lacking and incapable of proof, the defendant is entitled to summary judgment as a matter of law irrespective of any issues of fact with regard to other essential elements. American Plan Corp. v. Beckham, 125 Ga.App. 416(1), 188 S.E.2d 151 (1972). The trial court in awarding summary judgment to the movant, Mrs. Goodwin, necessarily relied upon evidence disclosing the will had not been executed in accordance with testamentary formalities, the other grounds asserted in the caveat in opposition to probate-the question of the testatrix' testamentary capacity, of the undue influence upon the testatrix of Hubert Waldrep in making the will, and of the forgery of the testatrix' signature-all being still in issue and capable of proof as the pleadings and evidence so indicate. The single ground, therefore, which would support the grant of summary judgment was the uncontradicted evidence brought out in testimony before the ordinary that at least one of the attesting witnesses signed the will before the testatrix.

2. Since Duffie v. Corridon, 40 Ga. 122 (1869), it has been the law of this State that subscribing witnesses to a will attest to the signature of a testator, that such signature is the legal act required of the testator in authenticating his will, and that a witness may not place his signature on the document before the testator because such would require the inference a witness may attest to a future act, which cannot be done. In Duffie and later cases upon this reasoning, it was declared that a subscribing witness may not acknowledge his own signature and that consequently even if signing and attestation are of the same continuous transaction, if a witness signs first, the will is of no value. Brooks v. Woodson, 87 Ga. 379, 13 S.E. 712 (1890); Lane v. Lane, 125 Ga. 386, 54 S.E. 90 (1906), and Small v. Jarrett, 156 Ga. 604, 119 S.E. 717 (1923). Because these cases present clear precedent for holding the will presently under consideration invalid, we have been called upon to reconsider them in the light of modern experience and opinion. (For an indication of how other jurisdictions have approached the question of the order of signatures in the execution of wills, see Annot. 91 A.L.R.2d 733 (1963) and the case notes, 21 Cornell L.Q. 674 (1935), 6 N.Y.U.L.Rev. 186 (1929), 1 Okla.L.Rev. 327 (1948), and 37 Yale L.J. 1003 (1928); see generally Atkinson on Wills, § 71, p. 337 (2d Ed.1953), Redfearn, Wills and Administration in Georgia, § 67, p. 130 (3rd Ed.1965), and Rees, American Wills Statutes, 46 Va.L.Rev. 613 (1960).). In doing so we have concluded that they rest upon the erroneous premise that subscribing witnesses attest to a testator's signature and that to allow their continued vitality would be to defer to a formality of execution which provides no benign safeguard against fraud. To the extent these cases conflict with the rule we here announce, they will be, and are, overruled.

Our Wills Statute, Code Ann. § 113-301, 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.' Ga.L.1851-2, p. 104, as amended. This statute does not of itself make that which is attested by a witness the signature of the testator. Like the Statute of Frauds upon which it was modeled, it does not set forth any particular acts of authentication by the testator to be attested by the witnesses.

The Statute of Frauds, 29 Chas, II, c. 3, § V (1677), similarly provided that '. . . all devises and bequests . . . shall be attested and subscribed . . . by . . . witnesses.' Under early prevailing decisional law it was the rule of the English courts that it was sufficient for the testator to acknowledge the document as one which he desired to give legal effect, and that the witnesses were not required even to see his signature because they were attesting 'devises and bequests.' White v. Trustees of British Museum, 6 Bing. 310, 130 Eng.Rep. 1299 (1829). See also the dissenting opinion of Mr. Justice Nichols in Argo v. Geise, 224 Ga. 695, 697, 164 S.E.2d 134 (1968), for a discussion of English common law and Georgia decisions. With the enactment of the English Wills Act, 7 Wm. IV and 1 Vict., c. 26, § IX (1837), however, specifying that when the testator did not sign in the presence of the witnesses, 'such signature shall be . . . acknowledged by the testator' in the presence, it became the signature which appeared to be the subject of attestation so that it had to appear in a position where the witnesses could see it if they designed to look. Hudson v. Parker, 1 Rob.Ecc. 14, 163 Eng.Rep. 948 (1844). See also Daintree v. Bucher and Fasulo, L.R., 13 Prob.Div. 102 (1888). In the ruling of Goods of Olding, 2 Curt.Ecc. 865, 163 Eng.Rep. 611 (1841), resting upon an interpretation of the Wills Act of 1837, it was declared that the testator must...