Bolton v. Bolton

Smith, C. J., delivered the opinion of the court. Appellants filed their bill in the court below to set aside the probate of the will of their brother, W. S. Bolton, and issue devisavit vel non was made up, and at the close of the evidence the court peremptorily charged the jury to find, “that the writing propounded is the last will and testament of W. S. Bolton, deceased,” and there was a verdict and decree accordingly.- The objection here urged to the will is that it is attested only by one witness. When the will was executed there were present the testator, Dr. W. T. Harris, and Mr. J. M. Whatley, a member of the board of supervisors of Quitman county. Dr. Harris wrote the will and signed his name thereto as an attesting witness. Mr. Whatley, who was present by request, was about to sign his name thereto also as an attesting witness, when the testator said to ‘him: “I would rather you take my acknowledgment to it, because I think it is better.” Dr. Harris then commenced to write an acknowledgment at the end of the will, whereupon Whatley took from his pocket a blank printed acknowledgment, took the testator’s acknowledgment, filled out and signed the blank, and handed it to Dr. Harris, who handed it, folded together with the will, to the testator, who handed them back to Dr. Harris, with the request that he put it in his pocket and take good care of it. Thus far, there is no conflict in the testimony. [91] According to Whatley, the acknowledgment was not physically connected with the will. According to Dr. Harris, he made an effort when the acknowledgment was handed to him to paste it to the will; but, the paste being defective, he failed so to do. He afterwards, however, attached it to the will will1 mucilage. The contention of appellants is that Whatley cannot be held to be an attesting witness for the reasons: First, that he did not sign the will for that purpose; and, second, that his signature is on a sheet of paper not physically connected with the one on which the signature of the testator appears. This will was signed by the testator in the presence of Whatley, and there can be no question that his taking the acknowledgment and attaching his signature thereto, was for the purpose of evidencing the fact that he had witnessed the execution of the will by the testator. It is not necessary for the signature of the attesting witness to be on the same sheet with the signature of the "testator. All that is necessary is that such witness shall attest the will. All of the authorities which have come under our observation hold that, where the names of attesting witnesses are on a separate sheet from that of the testator, the will is sufficiently attested if these sheets are physically connected. If Dr. Harris therefore had pastéd these sheets together at the time the will was ■executed, there can be no doubt, under the authorities, that the attestation of Whatley would have been sufficient. It seems to us that the same result must follow when the testator himself, knowing what Whatley’s signature was intended to be, handed the two papers to Harris, folded together, as his completed will. Affirmed.