Wood v. Davis, (Nos. 4730, 4731.)

• Decision Date: 10 February 1926
• Docket Number: (Nos. 4730, 4731.)
• Citation: 161 Ga. 690,131 S.E. 885
• Parties: WOOD. v. DAVIS. DAVIS. v. WOOD.
• Court: Georgia Supreme Court

161 Ga. 690

131 S.E. 885

WOOD.

v.DAVIS.

DAVIS.

v.WOOD.

(Nos. 4730, 4731.)

Supreme Court of Georgia.

Feb. 10, 1926.

(Syllabus by the Court.)

Beck, P. J., and Gilbert, J., dissenting.

Error from Superior Court, Dougherty County; W. V. Custer, Judge.

Proceeding by Mrs. D. D. Davis to probate the will of H. S. Johnson, in which caveat was filed by Mrs. E. W. Wood. Verdict for propounder, and to review a judgment overruling a motion for new trial caveatrix brings error, and propounder assigns cross-error. Judgment on main bill of exceptions reversed; on cross-bill affirmed.

The will of H. S. Johnson was offered for probate in solemn form. A caveat was filed by Mrs. E. W. Wood. The first ground of the caveat alleged that—

"Said paper is not the last will and testament of said H. S. Johnson, for the reason that, even if it had been otherwise valid, the same was never legally executed as a will, for the reasons that: (a) The same was never attested and subscribed by the three witnesses in the presence of the said H. S. Johnson; and (b) neither was the same attested or subscribed by the said three witnesses in the presence of each other; and (c) said paper was not signed by said Johnson in the presence of three witnesses, nor acknowledged by him inthe presence of three witnesses, nor attested by three witnesses; (d) the same was never signed by the alleged testator in the presence of three witnesses, nor acknowledged by said alleged testator, nor any one for him in his presence in the presence of said witnesses, nor did said alleged testator request by himself or any one else in his presence that said three witnesses attest said paper."

On the trial in the superior court upon appeal the caveatrix offered the following amendment to her caveat:

"(1) She admits that the paper propounded and sought to be probated as the will of H. S. Johnson was signed by said H. S. Johnson when he was prima facie of testamentary capacity, and that, after the said H. S. Johnson signed the same, the three persons, J. A. Hamil, R. R. Cates, and W. J. Peed, whose names appear on said paper as witnesses did sign their said names on said paper underneath an attestation clause reading as follows: 'Signed and published by H. S. Johnson as his last will and testament, in the presence of the undersigned who write our names hereto as witnesses of said testator and in his presence and in the presence of the executrix.' But caveatrix says that as a matter of fact said paper was not signed or acknowledged by said Johnson in the presence of said witnesses, nor did said witnesses attest or subscribe the same in the presence of said Johnson, and therefore said paper is not a legally executed will. (2) Said caveatrix, having admitted a prima facie case, assumes the burden of proving the grounds of her caveat, and claims the right to begin the introduction of the evidence, and to the opening and conclusion of the argument."

The caveatrix relied solely upon the ground just stated. The undisputed evidence establishes the following facts: The testator, riding on the back seat of a sedan car driven by his son-in-law, drove up in front of the Union Grocery Company at Albany, Ga. The car stopped at the curbing, which is 38 feet from the door of the grocery company. Hamil, who was inside, saw Johnson as he drove up, and went out to the automobile. Johnson informed Hamil that he had made a new will, and desired that it be witnessed by the same persons who had witnessed his former will. These witnesses were Hamil, Cates, and Peed. Hamil procured pen and ink and called Cates. Johnson signed the will in the automobile, after which Hamil and Cates signed. Johnson signed first, then Cates, and then Hamil signed. Hamil then carried the instrument to Peed's desk in the front office of said grocery company, leaving Johnson at the car. Peed was sitting at his desk. Hamil said to Peed:

"Mr. Peed, here is a new will Mr. Johnson says he made, and he wanted us to sign it, as we witnessed the other will."

Peed had his pen in his hand at the time, and signed the instrument right there. Hamil then took it, and carried it out of the office, through the front door, and gave it back to Johnson. Johnson did not know where Peed was. Nothing was said by Peed about where Johnson was. Neither Johnson nor Peed knew where the other was. Johnson did not, and could not, hear what Hamil said to Peed when he went in there. Peed did not, and could not, hear what Johnson said to Hamil. At the time Peed signed the instrument he sat at his desk. He did not get up at all. He did not see Johnson that day; did not know where he was. He did not see Johnson sign the paper, and did not know he was in his neighborhood. Hamil testified that, if Johnson was in the right position, there was nothing to prevent him from seeing Peed at the time he signed the will. He could if the car was in the right location, but he did not know that the car was in such position. Cates testified that he had tried to look through the window in a similar manner, and he could see Peed. Attached to the instrument was a full attestation clause.

The jury returned a verdict in favor of the propounder. The caveatrix moved for a new trial, and excepted to the judgment overruling her motion. The propounder objected to the allowance of the above amendment to the caveat on the ground that it did not admit a prima facie case which entitled the plaintiff to the opening and conclusion. The trial judge overruled this objection, and allowed the amendment. To this ruling the propounder excepted and assigned error thereon in a cross-bill of exceptions.

Pope & Bennet, of Albany, for plaintiff in error.

Claude Payton, of Miami, Fla., for defendant in error.

HINES, J. (after stating the facts as above). [1] 1. The single question presented for decision in the main bill of exceptions is this: Is a will properly executed where one of the attesting witnesses did not see the testator sign the instrument purporting to be his last will, and where the testator did not acknowledge to said witness that the signature to the instrument was his signature?

"All wills (except nuncupative wills) disposing of realty or personalty must 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 three or more competent witnesses." Civil Code 1910, § 3846.

To constitute a legal execution of an instrument purporting to be a will, under the above section of the Code, it is absolutely necessary that the attesting witnesses either actually see the testator sign the instrument or that the testator acknowledged his signature thereto either expressly or impliedly. This is the plain language of the statute. It expressly declares that the writing "shall be attested and subscribed in the presence ofthe testator by three or more competent witnesses." Attestation is the act of witnessing the actual execution of a paper, and subscribing one's name as a witness to that fact. White v. Magarahan, 13 S. E. 509, 87 Ga. 217; Baxley v. Baxley, 43 S. E. 436, 117 Ga. 60; 28 R. C. L. 123, § 78; 1 Schuyler on Wills, § 513; 40 Cyc. 1120. Attestation is the act of witnessing the actual execution of a paper. Slade v. Slade, 118 S. E. 645, 155 Ga. 851, 861, 862. Our word "witness" comes from the Anglo-Saxon word "witan, " which means to know. A witness to an instrument cannot know that the signature of the maker thereto is his signature unless he either sees the maker sign the instrument or unless the maker acknowledges to the witness that the signature thereto is his signature.

In Swift v. Wiley, 1 B. Mon. (Ky.) 114, 117, Chief Justice Robertson, of the Supreme Court of Kentucky, said:

"To attest the publication of a paper as a last will, and to subscribe to that paper the names of the witnesses, are very different things, and are required for obviously distinct and different ends. Attestation is the act of the senses, subscription is the act of the hand; the one is mental, the other mechanical, and to attest a will is to know that it was published as such, and to certify the facts required to constitute an actual and legal publication; but to subscribe a paper published as a will, is only to write on the. same paper the names of the witnesses, for the sole purpose of identification."

In Chase v. Kittredge, 11 Allen (Mass.) 49, 63 (87 Am. Dec. 687), Judge Gray said:

"The statute requires that the will shall 'be in writing and signed by the testator, ' and shall he 'attested and subscribed, in the presence of the testator, by three or more competent witnesses.' He is not required to write his signature in their presence, but it is his will which they are to attest and subscribe. It must be his will in writing, though he need not declare it to be such. It must therefore be signed by him before it can be attested by the witnesses. He must either sign in their presence, or acknowledge his signature...