140 Ga. 119 | Ga. | 1913
(After stating the foregoing facts.) Upon the trial of the issue devisavit vel non, the burden was upon the proponent to prove the due execution of the instrument offered for probate as the will of Mrs.. Brown — that is, that she signed it 'as her will, and that it was attested and subscribed in her presence by three or more attesting witnesses (Civil Code, § 3846), and that she, at the time of its execution, was mentally capable of making a will. To successfully carry this burden (it being a proceeding to probate a will in solemn form) it was incumbent upon the proponent to prove the paper offered to be the will of Mrs. Brown, by all the witnesses purporting to have attested it, who were, at the time of the trial, in existence and within the jurisdiction of the court; or by proof of their signatures and that of the alleged testatrix, Mrs. Brown, if the witnesses or any of them were beyond the jurisdiction of the court. Civil Code, § 3856. It was shown on the trial that two' of
In the case now before us, Eaines, whose name appeared as an attesting witness, testified that he saw Mrs. Brown sign the instrument offered for probate, and that he signed it as a subscribing witness in her presence. Allen, whose name also appeared as 'an attesting witness, testified that he saw Mrs. Brown sign the instrument, that he signed it as a.subscribing witness, and that he saw Graham, Miller, and Eaines, whose names appeared as attesting witnesses, sign the instrument as subscribing witnesses, and that Mrs. Brown signed the will in his presence and in the presence of others. It thus appears that two of the subscribing witnesses testified upon the trial, and that the evidence of one of them, Allen, showed that the instrument was executed in accordance with all the requirements of the law. ' His testimony was to the effect that the signature of Mrs. Brown and the signatures of all four of the witnesses were genuine; and Eaines’s testimony was to the effect that Mrs. Brown’s signature and his own were genuine. There can be no more satisfactory evidence of the genuineness of a signature than the testimony of one who saw it written (3 Chamber layne’s Modern Law of Evidence, § 2177), and the evidence of Allen and Eaines as to the execution of the instrument it was sought to probate was, in the circumstances of the case, sufficient to make out a prima facie case. Moreover, there was evidence of Mrs. Brown’s knowledge of the contents of the instrument and her desire to execute it as her will; and besides, there was a full attestation clause reciting compliance with all formalities of execution; and these were matters for consideration in passing upon the question of will or no will. 40 Cyc. 1286-1304. In Underwood v. Thurman, 111 Ga. 325 (36 S. E. 788), it was held: When the attestation clause to an instrument offered for probate as a will “recites all the facts
In a proceeding to probate a will in solemn form the issue and the only issue is devisavit vel non. The jury must find that the paper offered for probate is or is not the .will of the decedent. The construction of the terms of the instrument are not, in such a proceeding, before the court for determination. Wetter v. Habersham, 60 Ga. 193; Gillis v. Gillis, supra. Therefore, even if the provision in the instrument offered for probate in the present case, devising to Mrs. A. J. Wells, the daughter of Mrs. Brown, and her son-in-law, A. J. Wells, certain realty, could be construed as being inoperative by reason of the fact that Mrs. Wells died prior to Mrs. Brown, and that therefore he was- not the son-in-law of the testatrix at the time of her death, this could not be a valid reason why the instrument should not be probated as the will of Mrs. Brown.
There was ample evidence, in the absence of any showing to the contrary, of the testamentary capacity of Mrs. Brown at the time the instrument offered for probate was executed.
It follows from what has been said that the verdict directed by the court against the proponent was contrary to the evidence; and the judgment refusing a new trial is therefore
Reversed.