Shewmake v. Shewmake

Beck, J. 1. Exception is taken to the following charge of the court: “If you believe from the evidence that at the time Hal P. Shewmake, the testator, called upon the subscribing witnesses to attest their names, to sign the instrument as witnesses, that his name was at that time signed to the instrument as testator, then you would have to go further and determine whether or not the testator, Hal P. Shewmake, told the witnesses in effect, or, in other words, in effect acknowledged his signature to the instruments. If you believe that he did not, notwithstanding you may believe from the evidence that his name appeared at the time to the instruments; if you don’t believe that he acknowledged his signature in the presence of these witnesses, you would be authorized under the law to find against the will.” This' charge was excepted to upon the ground that it was not a correct statement of the law, [814] and that it was. without evidence to authorize it. While the charge may contain' certain verbal inaccuracies, it is in substance a correct statement of the law as applied to the issues made in the case and the evidence submitted. One of the witnesses testified that the testator, when Mr. Eamsey, one of the attesting witnesses, remarked that he did not know what he was signing — that he hoped it was not his death warrant, said, “No, it is my will,” and that he made that declaration in the presence of the three witnesses. In the case of Webb v. Fleming, 30 Ga. 808 (76 Am. D. 675), it is said: “A testator’s acknowledgment of his signature in the presence of the subscribing witnesses is sufficient, without the signing being done in their presence.” And in the body of the opinion it was said: “The evidence is, that he [the testator] did sign it [the will] in the presence of the witness, Martin, and that, by his conduct, he clearly acknowledged his signature in the presence of each of the other two. And that was sufficient.” In that case it will be observed, from reading the statement of facts, that the conduct which was held to amount to an acknowledgment of the signature was about the same as the conduct which it is claimed in the present case amounted to an acknowledgment of the signature; that is, the testator, in the case from which the quotation is taken, said, “Yes, this is my will; it is Written as I want it; I want you to witness it.” And there appears the further statement that “Sanders [the testator] did not. sign or say he had signed it in witnesses’ presence.” See also the case of Beall v. Mann, 5 Ga. 456. 2. A similar exception to the one just dealt with is taken to the following charge of the court: “If you believe that the testator’s name was signed to the instruments at the time he procured the witnesses to sign as witnesses, and you believe further that the testator, Hal P. Shewmake, told the witnesses, or that he acknowledged his signature in their presence, why then you would be authorized to find in favor of the will.” There being evidence in the record, as pointed out in dealing with the ground of the motion considered in the preceding division of this opinion, that the alleged testator had said of the paper offered for probate, “it is my will,” and in view of the authorities cited above, dealing with a similar situation, this exception is without merit. 3. Another ground of the motion complains of the following charge of the court: “It is not necessary for the testator actually [815] to sign the will in the presence of the subscribing witnesses, but any acknowledgment before them of his signature to the instrument makes their attestation and subscription complete, and a due acknowledgment in fact does not necessarily require the use of the words that ‘this is my signature/ or other equivalent expression; provided the testator’s conduct was such as to amount to, in common understanding, any reasonable construction to the acknowledgment of his signature to the instrument, although the witnesses didn’t see the signature.” In the case of Beall v. Mann, supra, it was said: “In the case of Gryle vs. Gryle, 1 Ves. Jr. 11, Lord Hard-wick doubted whether it was a sufficient execution, and publication of a will, for the testator to say before the witnesses, ‘this is my will/ without some further act on his part. But those doubts have long since vanished, and modern adjudications have gone to the extent of deciding that a will is duly executed and published, though the witnesses neither saw the testator’s signature nor were made acquainted with the instrument they attested, provided they were requested by the testator to subscribe the memorandum of attestation. British Museum vs. White, 3 M. and Pay. 689. S. C. 6 Bingh. 310. Wright vs. Wright, 5 M. & P. 316. S. C. 7 Bingh. 457. Johnson vs. Johnson, 1 Cromp. and Mees. 140.” We think that this ruling is authority for thé proposition contained in the judge’s charge. While the charge as given may contain some verbal inaccuracies, in substance' it instructs the jury that it is not necessary for the testator actúally to sign the instrument in the presence of the witnesses, and. that any acknowledgment before them of his signature to.the instrument is sufficient, and that the “due acknowledgment” need not he embodied in any particular verbal formula, but it may be inferred from conduct which amounts to an acknowledgment of the signature, although the witnesses did not see the signature. Of course it is essential to the validity of the will that the signature should have been there at the time of the subscription of their names by the attesting witnesses; and the judge correctly and clearly instructed the jury to this eifect. In the same connection see the ease of Webb v. Fleming, supra; Thompson v. Davitte, 59 Ga. 472 (8); Dewey v. Dewey, 1 Met. (Mass.) 349 (35 Am. Dec. 367). 4. Another charge of the court excepted to is as follows: “A full and complete attestation clause properly signed is prima facie [816] evidence of the due execution of the will, and has the effect of shifting the burden of proof to those who deny the proper execution of the instrument or the will.” It might appear at first blush that the language of this charge was entirely too broad; but it will be observed that the judge in this part of his charge is dealing exclusively with proof of the execution of the will, and not with the burden generally which rests upon propounders, where the issue is made of devisavit vel non. And, viewed as instructions touching the execution merely of the will, the charge is not error. The-attestation clause was as follows: “Signed and sealed by the testator; we in his presence and at his request, and in the presence of each other, have hereunto subscribed our names and attested the same as witnesses, this 1st day of August, 1913.” While possibly this attestation clause is a little unusual in form, it has all the elements of a full and complete attestation clause. And that being true, as just ruled, there was no error in the charge. “A full and complete attestation clause properly signed is prima facie evidence of the due execution of the will, and has the effect of shifting the burden of proof to those who deny the proper execution of the will.” 14 Enc. Ev. 407. And it is said in the case of Underwood v. Thurman, 111 Ga. 325 (36 S. E. 788) : “When the attestation clause to such an instrument 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.” In the opinion in the case last cited the following is quoted approvingly from Schouler on Wills: “The advantage of an attestation clause with suitable recitals is shown in ipany of our decisions relating to the proof of wills. Where, indeed, there is nothing but a formal attestation clause on one side, and the testimony decidedly adverse of both subscribing witnesses on the other, probate of .a will has been refused. But, with the aid of a proper attestation clause to contradict such persons, or possibly without it, wills have been established in proof, against the concurring statements of both subscribing witnesses or the statement of either that the legal requirements of execution [817] were not fully complied with.” And in the opinion it was said: “In Deupree v. Deupree, 45 Ga. 415, a majority of the court, at the January term, 1872, held that under the circumstances of that case a presumption of the due execution of a paper, testamentary in character and shown to have been signed by the alleged testator, arose from an attestation clause which did not recite that the witnesses signed in the presence of the testator; and all the members of the court agreed that if the attestation clause had so recited, it would, when the signatures of the testator and the witnesses were proved, have raised a presumption of law that the paper was duly attested as a will. Nothing to the contrary was laid down in this case when it was again here at the July term, 1873 (49 Ga. 325); nor has this court, so far as we have been able to ascertain, ever held that a presumption of due execution did not arise in such a case as the one now before it.” 5. The court did not err in admitting in evidence copies of the papers offered as the will, over the objection that the execution of the will had not been proved. Under the facts of the case the court properly admitted evidence tending to show the genuineness of the testator’s signature to the will. Gillis v. Gillis, 96 Ga. 1 (23 S. E. 107, 30 L. R. A. 143, 51 Am. St. R. 21). Judgment affirmed. Fish, O. J., absent. Atldnson and FLUI, JJ., dissent. The other Justices concur.