144 Ga. 801 | Ga. | 1916
Lead Opinion
Judgment affirmed.
Rehearing
ON MOTION ROE REHEARING.
The act of 29 Car. c. 3, commonly called the statute of frauds, the fifth section of which made provision in regard to wills, is set out in Cobb’s Dig. 1128, as follows: “All devises and bequests of any lands, or tenements, devisable either by force of the statute of wills, or by this statute, or by force of the custom of Kent, or by the force of the custom of any borough, or any other particular custom, shall be in writing, and signed by the party so devising 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 said devisor by three or four credible witnesses, or else they shall be utterly void, and of none effect.” By the 19th section thereof provision was made in regard to nuncupative wills. By the act of 1852 (Acts 1851-2, p. 104), wills disposing of personalty were required to be executed and proved in the same manner as previously required in regard to devises of real estate.
In a number of the American States the statutes require that the testator must sign or subscribe the will in the jmesence of the witnesses, or that he may acknowledge his signature or subscription in their presence. Under some of them also the witnesses need not be present at the same time, provided that the testator signs cr acknowledges his signature before each one of them. Under such statutes it is more commonly held that if the witnesses do not see the testator sign or see his signature which has been affixed, or do not have opportunity so to do, the execution of the will is invalid. In some States a will may be upheld although the witnesses neither saw the testator sign nor saw his signature. Dougherty v. Crandall, 168 Mich. 381 (134 N. W. 24, 38 L. R. A. (N. S.) 161, and note, Ann. Cas. 1913B, 1300).
As originally codified (Code of 1863, § 2383) . the law in regard to the execution of wills was declared as follows: “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 directions, and shall be attested and subscribed in the presence of the testator by three or more competent witnesses.” Section 2387 read as follows: “In all cases a knowledge of the contents of the paper by the testator is necessary to its validity; but usually where a testator can read and write, his signature, or the acknowledgement of his signature, is sufficient. If, however, the scrivener or his immediate relations are large beneficiaries under the will, greater proof will be necessary to show a knowledge of the contents by the testator.”
The two sections are now included in the Code of 1910 as §§ 3846, 3850: the first, under the caption, “Formalities of Execution;” the second, under the head, “Knowledge of Contents.” In adopting substantially the English statute of frauds on the subject of necessary formalities in the execution of wills, we will follow the construction placed by the English courts upon that statute prior to our adopting act of 1784. Brown v. Burke, 22 Ga. 574 (3). See also Thornton v. Lane, 11 Ga. 459 (4), 500; Tucker v. Adams, 14 Ga. 548, 569; Thrower v. State, 117 Ga. 753, 757 (45 S. E. 126).
After these provisions had thus been codified, the decision in
From what has been said it will be seen that the English construction of the statute of frauds established a rule as to what was a sufficient acknowledgment of the instrument; that the statute of frauds in regard to the formalities of execution of the will was the law of Georgia prior to the adoption of the code in this State; that it was adopted in the code with no substantial change except as to the inclusion of a will of personal property on the same basis as a devise of realty, and as to the mentioning of the execution of nuncupative wills, for which provision was elsewhere made. It will further be seen that there is nothing in the decisions of this State adopting a different ruling since the code took effect, but that the same line of reasoning has been pursued consistently. The only place where reference is made to the acknowledgment of the signature is in section 3850 of the Code of 1910, which deals with knowledge of the contents of the will by the testator, and declares that where Fe “can read and write, his signature, or the acknowl
There was some evidence for the consideration of the jury, tending to show that the signature appended to the instrument when offered for probate was the genuine signature of the testator. From the discussion above it will be seen that the rule adopted in this State is to the effect that the acknowledgment by the testator in the presence of the attesting witnesses that the instrument is his will carries an implication that he has signed it, and that the signatures of the attesting witnesses, with an attesting clause reciting that the paper was signed and sealed by the testator and attested by them, carries the probative force that the will has been regularly executed. If in fact the instrument had not been signed by the testator or by some other person in his presence and by his express, direction before it was attested by the witnesses, it would not be a will, because a testamentary paper does not become a will until it is signed, and the witnessing of an unsigned paper would not suffice. But while this is true, we are of the opinion that under the evidence, and especially in view of the facts above mentioned, the question was for the jury.whether the signature of the paper appended thereto at the time it was offered for probate was that of the purported testator, and, if so, whether in fact it was upon the paper at the time when the attestation was made or not; and we can not declare that there was no evidence which would authorize the jury to find in favor of the probate of the will. Rehearing denied.
Atkinson and Hill, JJ., dissenting. The burden was upon the propounder to prove the factum of the will. Slaughter v. Heath, 127 Ga. 747 (57 S. E. 69, 27 L. R. A. (N. S.) 1). Factum