158 Ga. 408 | Ga. | 1924
This was a proceeding to probate a will, to which a caveat was filed. Originally the caveat contained several grounds. After the verdict sustaining the will, a motion for a new trial was filed, and the exception is to the judgment refusing a new trial.. The brief of counsel for the plaintiff in error states: “Although there remains in the record certain evidence which was relevant
Headnotes one to ten, inclusive, do not require elaboration other than what is hereafter said in this opinion. “A proper attestation clause, to a duly signed and attested will, raises the presumption of a legal execution. Where there is a proper attestation clause to a will, a prima facie case of due execution is made by proving the signatures of the testator and the subscribing witnesses, or by proving the actual signing by them, and this proof may be made by persons other than the attesting witnesses.” Redfearn on Wills and Administration of Estates, 114, § 73. “When the attestation clause recites 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; and this is so though there may be on the part of one or more of the witnesses a total failure of memory as to some or all of the circumstances attending the execution.” Underwood v. Thurman, 111 Ga. 325 (3) (36 S. E. 788); Shewmake v. Shewmake, 144 Ga. 801 (87 S. E. 1046); Wells v. Thompson, 140 Ga. 119 (78 S. E. 823, 47 L. R. A. (N. S.) 722, Ann. Cases 1914C, 898); Gillis v. Gillis, 96 Ga. 1, 17 (23 S. E. 107, 30 L. R. A. 143, 51 Am. State Reports, 121); Deupree v. Deupree, 45 Ga. 416 (3). “The law does not allow proof of the valid execution and attestation of a will to be defeated at the time of probate by the failure of the memory on the part of any of the subscribing witnesses. . . Or, by their even denying their signatures altogether, when such denial is overcome by other competent evidence.” Grice on Executors, Administrators and Guardians, 330, and authorities cited. Immediately following the name of the testator at the conclusion of the will is the following language: “ Signed, declared, and published
In the case of Slade v. Slade, supra, the question of publication and attestation of wills was elaborately discussed. In this case, as in the Slade case, it is not insisted that the testatrix did not sign the will, or that she did not know the contents of the paper which she did sign. The undisputed evidence shows that the testatrix signed the will. The only contention of the caveators is that the will was insufficiently attested. All other grounds of the caveat as amended are expressly abandoned. In the Slade case it was said: “There is no significance in the use of the two terms ‘attested’ and ‘subscribed’ as used in section 3846 of the Code, which raises an inference of conflict in the meaning of the two terms, or an inference that the word ‘attested’ embraces the idea that there is an acknowledgment of the paper as a will upon the part of the testator.” It was also held that the word “attested” does not carry with it any implication of publication. “ ‘Attestation’ is the act of witnessing the actual execution of a paper and
In addition to this, there was other testimony of these witnesses upon which plaintiff in error bases the contention that the verdict on behalf of the propounder was not only unsupported by evidence, but that a verdict for the caveators was demanded. Plaintiff in error concedes that the evidence of the attesting witnesses is undisputed. After identifying his signature, 0. A. Griffin testified
A'. H. Duggan testified that he wrote the figures “16” in the date line to the will, the 16th of September. He also testified as follows: “I recollect a lady in black coming to the window with some gentleman and asking that this paper be witnessed. She said that she wanted three witnesses, and the given name was a very unusual name, was the only thing I could recollect specifically. When she said she wanted it witnessed, the best I recollect it was signed at the window, on the marble slab there at the window. The best I can recollect she was at the window when she signed. As to whether the paper was there at the window — on the slab, the marble slab, she could have witnessed it at the desk about five feet away and come back there and acknowledged it, but the best I recollect she was right at the window. I can recollect that her signature was one she made there that day, the signature -on that paper, on the day that I wrote the '16.’ I signed the paper as ah attesting witness at her request. Outside of what I have testified, I don’t recollect anything that was said or done by anybody at the time Mrs. Saveli signed the paper. At the time Mrs. Saveli signed the paper, Mrs. Hill, the lady in black, was at the window. Mr. Griffin signed the paper ahead of me. He signed first. I saw him sign it at my request. He did it at my request. When I made the request Mrs. Hill was at the window. As to where the lady in black, Mr. Griffin and I were when Mrs. Saveli signed — Mr. Griffin and Mrs. Saveli were there; we were in the cage. I would say we were at the marble slab in the cage at the time those signatures were made by these attesting witnesses.” The witness Duggan was shown an affidavit dated November 12th, 1920 (the will was dated September 16th, 1920), and admitted that it was his affidavit. In this affidavit is the following language : “Deponent says that he has no recollection of having seen Mrs. Dempie J. Hill. Deponent says that he has no recollection
It is argued by the plaintiff in error that the evidence, the essential portions of which are quoted or mentioned above, demanded a finding that two of the witnesses, C. A. Griffin and Mrs. Saveli, never at any time saw Mrs. Hill, and that she did not sign in the presence of these two witnesses or acknowledge her signature to them; and that, considering the contradiction between the oral evidence of the witness Duggan and his affidavit, his testimony is insufficient, considered either by itself or in connection with all of the other evidence, to support the finding of the jury in favor of the prbpounders. It is contended that the testimony of: Mrs. Saveli, to wit, “I now swear that I never saw her, and that she never acknowledged her signature to me,” and the testimony of C. A. Griffin, another attesting witness, to wit, “I never saw Mrs. Hill at any time,” is sufficient to prevent the probating of the will. This contention, however, apparently overlooks other evidence of these witnesses. Mrs. Saveli also swore: “I have no recollection as to the facts and circumstances connected with my signing this paper. . . I do not recall where I was when I signed it, or who was present when I signed it. . . I do not know who presented the paper to me. All I can say is that I signed it at Mr. Duggan’s request.” Mr. Griffin also testified: “There is no fact connected with this paper that I signed, or the
Judgment affirmed.