Moore v. Walton

Gilbert, J. 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 — 411 — upon the amendment to the caveat attacking the will upon the ground of mental incapacity and undue influence, these grounds of the caveat are expressly abandoned, it being admitted on behalf of the plaintiff in error that the evidence, even if insufficient to sustain the amended caveat on these grounds, would yet be sufficient to justify a jury to find against the caveat on these particular grounds; and therefore it will only be necessary to consider the case from the standpoint of the caveat based upon the ground of insufficient attestation.” 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 — 412 — by Mrs. Dempie J. Hill, as her last will and testament, in our presence, she first signing in our presence and we afterwards signing in her presence, in the presence of each other, and at her special instance and request signing the same as witnesses. This 16th day of Sept., 1920. Lillian L. Saveli, C. A. Griffin, A. H. Duggan, N. P. State at large.” This is a complete and proper attestation clause. Indeed it is impossible to conceive an attestation clause couched in more ideal language or one reciting more fully all the facts' essential to the due execution of the will. It is admitted in the brief of counsel for the plaintiff in error that the witnesses “did sign [subscribe] the paper,” but they insist “that they never did attest the same,” arguing that the language of the code “attested and subscribed” is in the conjunctive, that signing the names or subscribing to the paper alone is not sufficient; that there must be “attestation” which carries with it “the mental knowledge on the part of the witness that he or she has either seen the testator sign or that the testator has acknowledged his signature to such witness,” citing Robbins v. Robbins (N. J.) 26 Atl. 673. The testator need not publish the contents of the will to the witnesses; and “no special request by the testator to the witnesses to attest his will is necessary; the law implies the request in the consummation of the act of execution.” Redfearn on Wills and Administration of Estates, 131, § 80. 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 — 413 — subscribing one’s name as a witness to that fact. . . The requirement of § 3846 of the Code that fall wills . . must be in writing, signed by the party making the same, . . and shall be attested and subscribed in the presence of the testator by three or more competent witnesses,’ does not mean that the witnesses should be present, when required, to.bear witness to the knowledge of the character and contents of the paper executed by the testator, but does mean and imply the presence of witnesses standing by when the testatrix signed her name or acknowledged her signature, and who, when required, can bear witness to the fact of the signature of the paper by the testatrix, and yet need not know what the paper was which was executed.” As stated above, it is undenied in the present case that the testatrix did sign the will. The evidence shows, without conflict, that the testatrix knew that she was signing her will, because she had caused her attorney to draft a will for her, and the attorney had given her explicit directions as to the execution of the paper. The evidence is also without conflict that the three witnésses did sign their names to the will as it appears and was presented for probate. Their names appear after the attestation clause. Their genuine signatures thus appearing after the attestation clause, unless their signing was to be. regarded as meaningless, the witnesses themselves, in the act of signing, declared that the testatrix had first signed “her last will and testament in their presence and that afterwards the witnesses signed the will in the presence of the testatrix and in the presence of each other, f at her special instance and request.’ ” Under the authorities above cited, these facts, as a matter of law, were sufficient to make a prima facie case for the propounder and to shift the burden of disproving legal attestation to the caveators. The three witnesses whose names appear under the attestation clause are Mrs. Lillian L. Saveli, A. H. Duggan, and C. A. Griffin. Each of them identified as genuine their own signatures and the signatures of the other two witnesses. 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 — 414 — as follows: “I have no recollection of seeing Mrs. Saveli sign this particular paper. I just know her signature. I have no recollection of seeing Mr. Duggan sign. I do not know what lady it was requested Mrs. Saveli to sign her name. I don’t know who requested it, or who did not request it. I don’t know who requested Mr. Duggan to sign, or did not request his signature., There is no fact connected with this paper that I signed, or the signing of this paper, that I now recall, only the fact- that I recognize my own’ signature. I do not remember Mrs, Dempie J. Hill during her lifetime. I have never seen Mrs. Hill or never known anything connected with dier. As to whether .Mrs. Hill was there at the desk at the time I signed that paper, and as to whether she wrote, or who wrote this name, whether the lady..who wrote this name was there or not at the time I signed the paper,, -I cannot state whether she was there or not. I can state she did not ask me to witness the paper herself. As to how, if I do not remember anything about it, I can say she did not ask me to sign the paper herself — if she had stated to me, ‘This is my last will and testament’ and asked me to sign it, I would have remembered it,,but no statement like that was made to me. As to whether I mean she did not say, ‘This is my will,’ — she did not say anything to me. I do not know that she was in the bank.” Mrs. Lillian LSaveli, in addition to .identifying her signature as genuine, also testified: “I have no recollection as to the facts, and circumstances connected with my signing this paper. Outside of my usual custom about signing papers in the bank, I do not recall where I was when I signed it, or who was present when I signed it. . . 1 do not know who presented the paper to me. All I can say is that I signed it at Mr. Duggan’s request. Outside of -Mr. Duggan’s request, I cannot recollect how I came to sign it. . ., So far as I know, Mr. Duggan handed me this paper and asked..me to witness it. That would be my best recollection from -the custom. . . You, Mr. Neely, and Mr. Moore called on me almost immediately after Mrs. Hill’s death, at the bank. I think it was sometime in the early part of November when you came to see me. I told you and Mr. Moore at that time that I had never seen Mrs. Hill, and that she never acknowledged her signature.. I now swear that I never saw her,- and that she never, acknowledged her signature to me. I have witnessed a lot of papers before and — 415 — since this will is supposed to have been witnessed.- ' I witnessed a will before this will is- supposed to have been witnessed. I have a recollection about that now. I remember the circumstances of that will that was signed before this paper was signed. It was brought to my attention by the testatrix that it was her will, and that she wanted me to sign it as such. It does seem that I would have remembered it if Mrs. Hill had asked me to witness, her will.” 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 — 416 — of the paper being presented to him as a will, or of any one asking that he witness the paper as a will; that it might have been signed before the paper was presented to him, and some one might have, and probably did, ask him to witness the paper after her signature had already been affixed.” He further testified: “Some forty-five days after that, after the death of Mrs. Hill, I was approached and asked whether I recollected attesting this will. At that time 1 did not recall any fact or circumstances connected with the execution of the will. Mr. Neely came down to see me himself about it. He called me up over the ’phone. At that time I did not recollect anything about it.” He further testified: “Mr. Griffin signed the paper ahead of me. He signed first. I saw him sign at my request. He did it at my request. . . I do not recollect whether I saw her sign it right there at the marble slab or at the desk. I will swear that definitely, that I do not recollect. I do not recollect whether I asked Mrs. Saveli to sign it, or whether Griffin asked her to sign it.” 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 — 417 — signing of this paper, that I now recall, only the fact that I recognize my own signature.” It is further contended that under the evidence of the attesting witness some one else may have signed the will, and not Mrs. Hill. But this is to entirely overlook the conceded fact established by undisputed evidence that the genuine signature of Mrs. Hill, the testatrix, is signed to the will, and there is no pretense that her name was affixed to the- will by any other person. In fine, all of the signatures, that of the testatrix and all three of the attesting witnesses, are conceded to be genuine; and under such circumstances it is impossible for this court to say that the verdict for the propounder was unauthorized. Judgment affirmed. All the Jxistices concur, except Atlcinson and Hill, JJ., disqualified.