Wells v. Thompson

• Decision Date: 13 June 1913
• Parties: WELLS v. THOMPSON.
• Court: Georgia Supreme Court

78 S.E. 823

140 Ga. 119

WELLS v. THOMPSON.

Supreme Court of Georgia

June 13, 1913

Syllabus by the Court.

To probate a will in solemn form, the burden is upon the proponent to prove the due execution of the instrument and the testamentary capacity of the testator at the time of its execution.

The statutory rule that a will must be proved in solemn form by all the attesting witnesses is of necessity dispensed with where the production of all is impossible because some may be beyond the jurisdiction of the court, or cannot be found, or are dead, or insane, or otherwise incompetent as witnesses at the time of the trial. In such cases the due execution of the will may be proved by the subscribing witnesses who can be produced, and proof of due attestation by the requisite number of witnesses may be made by proving the handwriting of the others.

While the interrogatories or depositions of attesting witnesses who reside beyond the jurisdiction of the court may be taken, it is not necessary to take them if the will can be proved by other legal and satisfactory evidence.

Where there is an attestation clause to an instrument offered for probate as a will, reciting all the facts essential to its due execution as a will, and it is shown that the alleged testator and those whose names appear thereon as witnesses actually affixed their signatures to the paper, a presumption arises that it was executed in the manner prescribed by law for the execution of wills.

That the alleged testator knew the contents of the instrument offered for probate and desired to execute it as a will may be considered on the trial of an issue of devisavit vel non.

In a proceeding to probate a will in solemn form, the only issue is devisavit vel non, and therefore the matter of construing the terms of the instrument offered for probate is not up for determination.

The evidence submitted in behalf of the proponent as to the due execution of the instrument offered for probate, and as to the testamentary capacity of the alleged testatrix at the time of its execution, was sufficient to make out a prima facie case for the probate of the paper as a will, and, no evidence having been adduced for the contestant, the court erred in directing a verdict in favor of the latter.

Error from Superior Court, Turner County; Frank Park, Judge.

Petition by A. J. Wells, nominated executor of the alleged will of Mrs. Evie Brown, for probate, in which Pearl M. Thompson filed objections. Judgment for objector, and proponent brings error. Reversed.

Civ.Code 1910, § 3861, providing that witnesses to wills may be examined by commission is permissive only.

A. J Wells, the nominated executor of the alleged will of Mrs Evie Brown, applied for the probate of the same in solemn form. A caveat was filed by Mrs. Pearl M. Thompson, who claimed to be the sole heir at law of Mrs. Brown. The grounds of the caveat were in substance as follows: (a) Mrs. Brown at the time the alleged will purports to have been executed was not of sound and disposing mind and memory, but was then a lunatic, and continuously so remained until the date of her death; (b) if Mrs. Brown signed the alleged will at all, she did not do so freely and voluntarily, "but she was moved thereto by the undue influence and persuasions of *** said A. J. Wells;" and (c) that the pretended will was void because A. J. Wells was not the son-in-law of Mrs. Brown at the time of her death, as his wife, the daughter of Mrs. Brown, had died without issue prior to the death of Mrs. Brown. Mrs. Thompson at the time of the filing of the application had two children, both of whom were minors, and a guardian ad litem was appointed for them. The case was tried in the superior court of Turner county on appeal from the court of ordinary of that county. On the trial the instrument sought to be probated was put in evidence by the proponent. The second item thereof was as follows: "I give to my daughter, Mrs. A. J. Wells, and my son-in-aw, A. J. Wells" a described house and lot in the city of Ashburn, this state. In the third item two designated lots in the same city were given to Mrs. Pearl M. Thompson for and during her life, with remainder to such children as she might leave surviving her. In a subsequent item all other property owned by Mrs. Brown was given to her two daughters, Mrs. A. J. Wells and Mrs. Pearl M. Thompson, share and share alike. The instrument purported to be signed by Mrs. Evie Brown and four attesting witnesses, namely, M. J. Miller, C. W. Graham, J. N. Raines, and J. H. Allen. The name of the latter purported to be signed officially as a notary public of Turner county, Ga. The following attestation clause immediately followed the purported signature of Mrs. Brown and preceded the purported signatures of the four witnesses: "Signed and published by Mrs. Evie Brown as her last will and testament, in the presence of the undersigned, who subscribed our names as witnesses at the instance and request of said testator, and in her presence, and in the presence of each other, this the 1st day of April, 1909." By evidence introduced by the proponent it was shown that two of the persons who appeared to be attesting witnesses to the instrument had removed from this state, and that one of them, Miller, was, at the time of the trial, a resident of the state of South Carolina, and that the other, Graham, was then a resident of the state of Florida. It appeared that the places where these witnesses respectively resided in such states were known. The interrogatories of neither of these two nonresident witnesses were taken. Miller's brother testified that he knew Miller's signature, and that his signature to the instrument was genuine. No one testified as to a knowledge of the handwriting of Graham. Raines and Allen, the other two persons who appeared to be subscribing witnesses to the instrument, were introduced by the proponent and testified on the trial. Raines' testimony was to the effect that Mrs. Brown signed the instrument sought to be probated in his presence, and that he signed it as a witness in her presence. He could not remember seeing Graham, Allen, and Miller, the other three persons who purported to be attesting witnesses, sign the instrument, but he testified that they were present when it was signed. On cross-examination he testified: "Now, I don't remember having seen Mr. Allen there." Raines further testified to the effect that he had boarded in the same house with Mrs. Brown for three years or more prior to her death, and was accustomed to see her on an average of three times daily. She spoke to him three or four times about making her will, and asked him to recommend to her some one to draw it up. She informed witnesses several times how she desired to dispose of her property, and the disposition made of it in the instrument was the same as she has informed him she wished to make of it. He conversed with her frequently, and there was nothing in her conduct to indicate that she was not of sound mind. Her memory was bad the last six months of her life. Allen's testimony was in substance as follows: He knew Mrs. Brown several years prior to her death. He went frequently to the house where Mrs. Brown resided. She signed the paper offered for probate, and he himself, Raines, Graham, and Miller also signed it. She requested the witness to sign it. He went on: "She signed it in my presence and in the presence of others. *** She said that she understood it. I conversed with her, and she was rational as she ever was. She read the paper over. She knew what she was giving to Mrs. Thompson and what she was giving to Mrs. Wells. I said to her: '*** Mrs. Brown, I want to fix it just like you want it, and if it is not like you want it I will fix it;' and she said: 'The property is divided just like I want it and I want to have it witnessed up to-day."'

At the conclusion of the evidence introduced in behalf of the proponent--and when no evidence had been adduced for the contestant--the court directed a verdict in favor of the latter. No exception was taken by the proponent on the ground that the court was without authority to direct a verdict at the conclusion of the evidence for the proponent, and where the contestant had introduced no evidence. Proponent moved for a new trial on the usual general grounds that the verdict...