96 Ga. 1 | Ga. | 1895
The nominated executors of the alleged last will of Sarah Gillis propounded the same for probate, and a caveat was filed by some of her heirs at law. On the trial in the superior court, to which' court the case had been carried by appeal, there was a verdict for the propounders; and the caveators bring up for review a judgment overruling their motion for a new trial. Besides the general grounds that the verdict was contrary to law and the evidence, and that the court erred in refusing to grant a nonsuit, the motion contained special grounds raising certain questions, the nature of which is disclosed by, the head-notes and this opinion.
The paper purporting to be the will was executed by the testatrix on the 12th day of March, 1878. It bears the names of four witnesses, but it was conceded that the last of them signed his name some time after the execution of the paper by the testatrix and its attestation by the other witnesses, and it does not appear that he signed in her presence. The appearance, therefore, of the name of this witness upon the paper counts for nothing in determining the question of the legality of its execution. Accordingly, the fact that he signed will be ignored altogether, and it will be understood that in speaking of the subscribing witnesses to the paper, reference to the other three only is intended. One of these signed by making her mark. Another died before the testatrix. The usual and formal attestation clause was used. The paper was offered for probate soon after the death of the testatrix, and about twenty years after its execution and attestation. At the time of probate, the two subscribing witnesses then in life were produced. The one who wrote his own name proved the due execution of the paper as a will. The signature of the de
1. The first and leading question is: Was the paper legally attested as a will ? The execution and attestation of written wills in this State, as to both real and personal property, is provided for in sections 2414 and 2415 of the code. Section 2414 reads as follows: “All wills (except nuncupative wills) disposing of realty or personalty, must he in writing, signed by the party making the same, or by some other person in his presence, and by his express directions, and shall be attested and subscribed in the presence of the testator by three or more competent witnesses.” Section 2415 declares that: “A witness may attest by his mark, provided he can swear to the same; but one witness cannot subscribe the name of another, even in his presence and by his direction.” Section 2414 was codified from section 5 of 29 Challes II, ch. 3, known as the “ statute of frauds,” in reference to devises of real property (Cobb’s Dig. p. 1128, Huff v. Huff, 41 Ga. 701), and from an act of January 21, 1852 (Acts of 1851-2, p. 104), which prescribes that wills bequeathing personal property shall be executed as are wills devising real property. The statute of frauds and our own act of 1852 each uses the word “ credible,” and section 2414 of the code uses the word “ competent,” as to the three or more witnesses required to attest a will. These two words are, as here used, synonymous. Hall v. Hall, 18 Ga. 40. They mean, in this connection, witnesses who are competent at the time of attestation to testify in a court of justice.
Thus, in one of the earlier English decisions, it was said: “The true time for his credibility is the time of
A witness who signs by his mark, if so capable of testifying, is just as competent a witness under the statute of frauds, our act of 1852 and section 2414 of the code, as one likewise capable of testifying who writes his own name. This is settled by an unbroken line of authorities. Harrison v. Harrison, 8 Ves. 185; Addy v. Grix, lb. 504; Doe d. Davies v. Davies, 9 Adol. & El. 648; Bailey v. Bailey, 35 Ala. 687; Garrett v. Heflin (Ala.), 13 So. Rep. 327; Horton v. Johnson, 18 Ga. 397; Montgomery v. Perkins, 2 Met. (Ky.) 448, 74 Am. Dec. 419; Lord v. Lord, 58 N. H. 7, 42 Am. Rep. 565; Compton v. Milton, 12 N. J. L. 70; Morris v. Kniffin, 37 Barb. 336; Pridgen v. Pridgen, 13 Ired. (N. C.) 260; Simmons v. Leonard, 91 Tenn. 183, 30 Am. St. Rep. 875; Jesse v. Parker, 6 Gratt. (Va.) 57, 52 Am. Dec. 102; 4 Kent (8th ed.), 575; 10 Bacon’s Abr1. 491; Williams on Ex’rs (3d Am. ed.), 79; Beach on Wills, §41; 1 Jarman on Wills (R. & T.’s ed.), 213, 214; Schouler on Wills, §331;
But for the proviso in section 2415 of our code, it cannot be reasonably doubted that the true test for determining the competency of any witness to the execution of a will in this State would certainly be whether or not the witness, at the time of attestation, would be disqualified from testifying in a court of justice. The rule as to witnesses generally, unless changed by that proviso, is beyond question applicable to “markmen.” Did the words, “provided he can swear to the same,” referring to a witness unable to write his name and who attests by his mark, change the rule? Omitting from the section the words just quoted, the mark of the witness, he being legally capable of testifying when he made it, would be good without any further condition. Suppose he should die, or become blind or insane; corruptly refuse to testify to what he knew; forget, or be inaccessible; and, for any of these reasons, did not, at the time of probate, in fact swear to the mark, but the other two witnesses did swear that he made it, and proved all other essential facts, must the will fail?
The proviso is new. After vei’y diligent search and inquiry, we have been unable to discover even a trace of it in any book other than our code, where it appears for the first and only time. Can it be possible that it
Surely neither the original codifiers nor the General Assembly can be supposed ever to have contemplated the
We cannot think this contention is sound. It goes beyond even the letter of the section under construction. . It assumes that the compilers of our code made a new law, and did not codify an old law. It “builds, like the martlet, on the outward wall.” It leads to patent' absurdities. It ignores the fact that sections 2414 and 2415 are in pari materia, and must be construed'together. It adopts, from two constructions, the one that defeats,- rather than the one that upholds, the real purpose of the law. It overlooks the rule that if the language of any part of section 2415 is devoid of sense, it may be eliminated by the court altogether. It makes the competency of the witness at the time of attestation dependent on his memory or will, or other contingency, at the time of probate. It departs from established authorities, which are laws themselves, the overturning of which would unsettle property rights.. It would enable a contestant to defeat a will by successfully tampering with a witness before the trial. And it does not include or suppose the possibility of an illiterate or infirm witness, if in existence, being voluntarily beyond the process of the coui’t, or his whereabouts being unknown at the time of probate, nor of the death or insanity of such witness before that time. “The
Whatever evils may exist in having illiterate or infirm persons, who are otherwise competent, to attest wills by their marks, it is shown by a uniform current of decisions, and b3r the opinion of all text-writers, that the sages of the law, from the earliest times to the present, have upheld the attestation of wills by such witnesses making marks for their signatures; and they have never set forth a reason for any change in the law. In the well-considered case of Pridgen v. Pridgen, supra, Nash, J., delivering the opinion of the court, says: “To
There is no act of our legislature or decision of our Supi’eme Court, before the adoption of our code, that ever changed, or attempted to change, the old law as to witnesses attesting wills by their marks; and there is at least one case decided by this court, before the code went into effect, which is in harmony with and upholds that law. See Horton v. Johnson, 18 Ga. 397. How, then, can it be said that the compilers of our code intended to incorporate into it any other than the prevailing rule of law ? It is not to be presumed that they, learned in the law, would, except in rare instances, themselves make a rule of law, when they were only empowered to codify existing laws of force in this State. See act of December 9, 1858; The Mechanics’ Bank v. Heard, 37 Ga. 412; Phillips v. Solomon, 42 Ga. 195, 196; Gardner v. Moore, 51 Ga. 269; The City of Atlanta v. The Gate City Gas Light Co., 71 Ga. 106, 119, 120; McDaniel v. Campbell, 78 Ga. 188. At any rate “the code is not to be construed as changing the old law, unless the change be very apparent” (Gardner v. Moore, and City of Atlanta v. Gas Light Co., supra); or, “unless the intent to change be clear,” as stated in Phillips v. Solomon, supra. It is, therefore, reasonable to conclude that the codifiers did not intend to create a new rule in Georgia as to the attestation of wills by illiterate or infirm per
In our opinion, the true interpretation of section 2415 is found by construing it with section 2414. They are in pari materia. Indeed, they cannot be separated, because they relate to the same subject-matter. The rule of law applying to statutes that are in pari materia is, that “where there are earlier acts relating to the same subject, the survey must extend to them; for all are, for the purposes of construction, considered as forming one homogeneous and consistent body of law, and each of them may explain and elucidate every other pai’t of the common system to which it belongs.” Eudlieh on Statutes, §43, and note thereto, where many authorities are collated. This rule applies with peculiar force to sections of our code relating to the same subject-matter, and which were codified at the same time, because they must be construed, if possible, to harmonize with each other. Bealle v. The Southern Bank of Georgia, 57 Ga. 274; Thomason v. Fannin, 54 Ga. 363. As was said in the latter case: “If a fair construction can be adopted to prevent such a contradiction by one section of the other, it should be done.”
Section 2415, read with section 2414, shows that an illiterate or infirm person may attest a will by his mark. Standing by itself, it does not show what the witness is to attest. The whole section is evidently codified from the case of Horton v. Johnson, 18 Ga. 396, which holds that if another witness signs the name of an illiterate witness, it is an illegal subscription, unless the illiterate witness affixes his mark; and from the case of Hall v. Hall, 18 Ga. 40, in which it was decided that any wit
It was argued that as section 2414 of the code distinctly declared, in effect, that all the witnesses to a will must be “competent,” i. e., capable of testifying, and by its terms necessarily embraced witnesses who could not write their names, the words, “provided he can swear to the same,” used in the next section with reference to a witness attesting by his mark, would be merely tautological, if regarded simply as repeating the necessity for competency already plainly and unequivocally required. The force of this position cannot fairly be ignored. In it lies the main strength of the argument on the other side of the question; for it gives much plausibility to the contention that the purpose of the words last quoted was to limit, to some extent, the competency of infirm or illiterate witnesses, by requiring that they should possess at least one other qualification than mere legal capacity to testify, viz: the ability to swear to their marks.
It would be unreasonable, if not absurd, to construe the words “can swear” as meaning that the witness must have the requisite memory and the keen physical perception which would enable him, after the lapse of weeks, months or years, to distinguish and identify a mere cross mark or other ordinary device representing his signature. This would certainly be very difficult, if not altogether impossible, if the mark had no pecu
In the argument here, our attention was called to the ease of Thompson et al.v. Davitte et al, 59 Ga. 472, as somewhat in point, because it there appeared that an attesting witness, when called upon to prove the execution of a will, stated his unwillingness to swear positively to a mark purporting to be made by him, although he said he thought he made it. That case has, however, afforded us no aid in reaching our present decision; for the only point there was, whether a mere statement by a witness of his belief could be regarded as affirmative evidence, and no construction of section 2415 of the code was then attempted. Indeed, so far as we have been able to ascertain, this court has never before been called upon to construe that section.
The correctness of the views upon this question we have abové expressed are, we think, confirmed by other considerations which belong more properly to the next division of this opinion.
2. Error was assigned upon the admission in evidence of the paper propounded, over the objection that there was no sufficient evidence from the subscribing witnesses as to its execution; and also upon admitting the testimony of Mary Gillis as to the execution of the paper by the testatrix and its attestation by the subscribing witnesses, over the objection that she, not being
It is well settled that the subscribing witnesses to a will must, if practicable, be called and examined; but the fate of a will does not depend entirely upon their testimony. Upon the trial of an application to prove a will in solemn form, they are, all of them, unless accounted for, indispensably necessary witnesses ; but the testimony, even as to the factum of execution, is not confined to them. The fact to be established is the proper execution of the will. If that is proved by competent testimony, it is sufficient, no matter from what quarter the testimony comes, provided the attesting witnesses are among those who bear testimony, or their absence is explained. The inquiry, as in other cases, is whether, taking all the testimony together, the fact is duly established. It is not required that any one or more of the essential facts should be proved by all, or any number, of the attesting witnesses. The right is simply to have the attesting witnesses examined, no matter what their testimony may be. The law does not allow proof of the valid execution and attestation of a will to be defeated at thetime of probate by the failure of the memory on the part of any of the subscribing witnesses. Deupree v. Deupree, 45 Ga. 442-443; Jackson v. Le Grange, 10 Am. Dec. 237; Dewey v. Dewey, 1 Met. 349, 35 Am. Dec. 367; Remsen v. Brickerhoff, 37 Am. Dec. 260 (note); Jauncey v. Thorne, 2 Barb. Ch. 40, 45 Am. Dec. 424 and note; Greenough v. Greenough, 11 Pa. St. 489, 51 Am. Dec. 568; Lawyer v. Smith, 8 Mich. 411, 77 Am. Dec. 460; Brown v. Clark, 77 N. Y. 369; Beach on Wills, §39, and cases cited in note 19. Or, by their even denying their signatures to the will altogether, when such denial is overcome by other competent evidence. Pearson v. Wightman, 1 Mill, 336, 12 Am. Dec. 636; Matter of Higgins, 94 N. Y. 554; Hall v. Hall, 18 Ga. 45;
The facts in the case, of Pate’s Adm’rs v. Joe, 3 J. J. Marsh (Ky.), 113, which are sufficiently stated in the case of Jauncey v. Thorne, supra, are very similar to the facts in the case at bar. In that case, one of the witnesses, a’woman, did not write her own name. As the decision says, “ She was examined as a witness, several years after the occurrence, but could recollect nothing of the circumstances except that Pate was sick, and rode in their [her and her husband’s] wagon, and was left on the road.” But her negative evidence was overcome by the affirmative testimony of the other subscribing witnesses, and the court held that the will was duly exe
There is nothing in section 2424 of the code, upon the probate of wills in solemn form, which, rightly construed, conflicts with the law as declared in this opinion. This section does not require that the subscribing witnesses “in existence and within the jurisdiction of the court ” shall each swear, at the time of probate, to their own subscriptions and to the signature and testamentary capacity of the testator, in order to make a will valid; for thus construing the section would lead to obvious and glaring wrongs and absurdities. It simply means that they must be produced for the purpose of testifying to these facts, if competent. This section of the code must be taken, not literally but in accordance with common sense and the usual rules of construction, as was done by this court in Kitchens v. Kitchens, 39 Ga. 171-173, in construing section 2396 of the code then in force, which was the same as section 2431 of the present code. There it is plainly declared that, in the ease of a lost will, the copy must be clearly proved by the subscribing witness; yet the court held that while the subscribing witness must prove the execution of the lost will, other witnesses might prove its contents. The main reason of the rule for calling all witnesses in a proceeding for probate in solemn form is, to give the other party an opportunity of cross-examining them; and while the law requires a will to be attested by three witnesses, it does not necessarily mean that all three must concur in their testimony to prove it on probate. To ■do this would make the validity of the will depend upon
Section 2424 does not, when considered in connection with the well-established law on the subject of the attestation and'proof of wills, as already shown, prevent the probate of a will on account of defect of memory, or even perjury, of a subscribing witness, when the deficiency is supplied by other evidence; because the general rules of evidence, and the force and effect of legal evidence, were not intended to be disregarded in probating wills even in solemn form. This is shown by construing together the act of December 13, 1859 (Acts of 1859, pp. 33 — 35), and the cases of Brown v. Anderson, 13 Ga. 177, and Hall v. Hall, 18 Ga. 40, from which section 2424 is evidently codified; and by considering the fact that when a will is propounded for proof in solemn form, “the issue, and the only issue, is devisavit vel non” — did he devise or not? Wetter v. Habersham, 60 Ga. 194. If each subscribing witness were compelled to testify alike, there might be no issue to pass upon.
3. The only remaining question to be disposed of requires very brief notice. The motion for a new trial complains that the court ei’red “in not charging the jury the law in regard to mutual wills,” and alleges that the verdict is “contrary to the law and evidence in this, to wit: the evidence showed that the will offered for probate was one of several mutual wills, and there was no evidence to show that the other mutual wills were not re-voked or destroyed.”
Although there'was some evidence of an agreement between the testatrix and others to make mutual wills, it does not appear that it was ever insisted upon or car