87 Ga. 379 | Ga. | 1891
There is nothing to distinguish this, case from Duffie v. Corridon, 40 Ga. 122, except that in the execution and attestation of this will there was but one transaction, the witnesses all subscribing the unsigned will in the presence of the testator, and he, at the same time and place and immediately after they affixed their signatures, signing the document in their presence. In Duffie v. Corridon there were two interviews, at the first of which two of the witnesses (together -with another who was not afterwards present) subscribed, and at the second, the testator and the third witness. But is this difference in the facts of the two cases material ? The
We rule the present case on the authority of the prior one above cited, being satisfied, after careful examination, that to abide by the principle of that decision we must regard the order of time in which the respective signatures occur, rather than- the interval of time by which they are separated. The manifest teaching of Duffie v. Corridon is that the testator must sign first. That teaching is not followed but directly violated when the witnesses sign first. Judgment affirmed.
Note. — Where signing by one or more of the witnesses precedes that of the testator, and is on a different occasion, the will is not validly attested: Reed v. Watson, 27 Ind. 443 ; Hindmarsh v. Charlton, 8 H. L. Cas. 160. But when all (witnesses and testator) sign on the same occasion, authorities differ. The will is held not good in Olding’s case, 2 Curt. 865 ; Byrd’s case, 3 Id. 117 ; Cooper v. Bockett, 3 Id. 648 ; Shaw v. Neville, 1 Jur. (N. S.) 408 ; Ragland v. Huntington, 1 Ired. L. 563 ; Jackson v. Jackson, 39 N. Y. 153 ; Sisters of Charity v. Kelly, 67 N. Y. 409 ; McMulkin’s case, 6 Dem. (N. Y.) 347 ; and see Pearson v. Pearson, L. R. 2