Wood v. Davis , 161 Ga. 690 ( 1926 )

Hines, J.

(After stating the foregoing facts.)

The single question presented for decision in the main bill of exceptions is this: Is a will properly executed where one of the attesting witnesses did not see the testator sign the instrument purporting to be his last will, and where the testator did not acknowledge to said witness that the signature to the instrument was his signature? “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 direction, and shall be attested and subscribed in the presence of the testator by three or more competent witnesses'.” Civil Code (1910), § 3846. To constitute a legal execution of an instrument purporting to be a will, under the above section of the Code, it is absolutely necessary that the attesting witnesses either actually see the testator sign the instrument, or that the testator acknowledge his signature thereto either expressly or impliedly. This is the plain language of the statute. It expressly declares that the writing “shall be attested and subscribed in the presence of the testator by three or more competent witnesses.” Attestation is the act of witnessing the actual execution of a paper, and subscribing one’s name as a witness to that fact. White v. Magarahan, 87 Ga. 217 (13 S. E. 509); Baxley v. Baxley, 117 Ga. 60 (43 S. E. 436); 28 R. C. L. 123, § 78; 1 Schuyler on Wills, § 513; 40 Cyc. 1120. Attestation is the act of witnessing the actual execution of a paper. Slade v. Slade, 155 Ga. 851, 861, 862 (118 S. E. 645). Our word witness comes from the Anglo-Saxon word witan, which means to know. A witness to an instrument can not know that the signature of the maker thereto is his signature unless he either sees the maker sign the instrument, or unless the maker acknowledges to the witness that the signature, thereto is his signature. In Swift v. Wiley, 1 B. Mon. (Ky.), 114, 117, Chief Justice Robertson, of the Supreme Court of Kentucky; said: “To attest the publication of a paper as a last will, and to subscribe to that paper the names of the witnesses, are very different things, and are required for obviously distinct and different ends. Attestation is the act of the senses, subscription is the act of the hand; the one is mental, the other mechanical; and to attest a will is to know that- it was published as such, and to certify the facts required to constitute an actual and legal publication; but to subscribe a paper published as a will is only to write on the same paper the names of the witnesses, for the sole purpose of identification.” In Chase v. Kittridge, 11 Allen (Mass.), 49, 63 (87 Am. D. 687), Judge Gray said: “The statute requires that the will shall be in writing and signed by the testator, and shall be attested and subscribed in the presence of the testator, by three or more competent witnesses. He is not required to write his signature in their presence, but it is his will which they are to attest and subscribe. It must be his will in writing, though he need not declare it to be such. It must therefore be signed by him before it can be attested by the witnesses. He must either sign in their presence, or acknowledge his signature to them, before they can attest it.” Witnesses must see the testator sign, or he must acknowledge the signature to be his. Re Laudy, 148 N. Y. 403 (42 N. E. 1061). Attesting witnesses, by their nature, name, and designation, are to attest or witness something; that something is the signature to the will. Re Eakins, 35 N. Y. Supp. 489 (13 Misc. 557). Subscribing witnesses to a will are required for the purpose of identifying the signature of the testator. For this purpose it is essential to the due execution of the will that either they see the testator subscribe his name, or that he should acknowledge it to be his. Re Hitchler, 55 N. Y. Supp. 642 (25 Misc. 365). In Hall v. Hall, 17 Pick. (Mass.), 373, the court said: “The witnesses must attest to the signing of the will. They must have knowledge of that fact in some manner. If they saw the testator actually sign the will, there could be no doubt; and there would be as little if the testator acknowledged his sigñature to the witnesses. And it was held a.long time before the American Eevolution, that it was sufficient that the testator should own his signature to the witnesses.” Attestation “consists in the witness seeing that those things exist and are done which the statute requires.” Tilton v. Daniels, 79 N. H. 368 (109 Atl. 145, 8 A. L. R. 1073). It may be taken to be settled that the attestation required by our statute, which is a reproduction of the English statute of frauds, consists in the witnesses seeing that those things exist and are done which the statute requires must exist or be done, to make the written instrument under the law the will of the deceased. This principle is supported by the great weight of authorities, and we think it is also supported by sound reasoning. The purpose of our statute, as was the purpose of the English' statute of frauds, from which it was taken, is to protect persons, in making their wills, from fraud, imposition, and forgeries. To accomplish this purpose, the witnesses must see the testator put his signature to the instrument, or he must acknowledge to them that the signature 'thereto is his signature. The adoption of a different rule would lay down the bars low and would open the doors wide to frauds and forgeries, which our statute was intended to prevent.

It has been held by this court, and properly held, that it is not necessary that the testator shall actually see the witnesses subscribe the instrument, if the situation and circumstances of the testator and the attesting witnesses to the will at the time of its attestation are such that the testator, in' his actual position, and without changing the same, • can see the- act of attestation. Robinson v. King, 6 Ga. 539; Reed v. Roberts, 26 Ga. 294 (71 Am. D. 210); Hamlin v. Fletcher, 64 Ga. 549; Gordon v. Gilmore, 141 Ga. 347 (80 S. E. 1007). In Robinson v. King, supra, Judge Nisbet said: “Nor is it necessary that the testator and the witnesses should be in the same room, nor even in the same house.” He further said: “The rule is, if the situation and circumstances of the testator and witnesses are such, as that the testator, in his actual position, might have seen the act of attestation, it is a good attestation.” In Lamb v. Girtman, 26 Ga. 625, 630, this court said: “We agree that the testator’s being out of the room raised a presumption that the attestation was not in his presence.” In Lamb v. Girtman, 33 Ga. 289, it was said: “When the testator signs his will in the presence of the subscribing witnesses, and retires to an adjoining room and lies down, and the witnesses subsequently signed as subscribing witnesses: Held, that the presumption is, that they did not subscribe in presence of the testator, and that this presumption must be rebutted by proof before the will can be set up.” If we concede that the above principle, that the testator need not see the- witnesses actually sign ,the instrument, if in his actual position and situation he could see them sign, is applicable to the attesting witnesses, the facts of the present case do not bring it within this rule. The testator signed the instrument in the presence of two of the witnesses, sitting in an automobile in the street, at the curb, in front of the building in the office of which the third witness subscribed the instrument as a witness. There is proof that the testator, from his seat in the automobile might have seen the witness subscribe the instrument; but there is no proof in the record that the witness from his situation could see the testator attach his signature to the document. In fact the signature of the testator was attached to the paper, when the witness did not see the testator at the time this was 'done, and did not know of his whereabouts, and did not know that he was subscribing his signature to the instrument. In these circumstances it is clear that this subscribing witness could not and did not see the testator subscribe this paper. In no sense could this witness be said to have been in a position from which he could have seen the testator sign this document. He was in ignorance of the presence of the testator and of his intention to sign the will. The witness certainly could not see something of the occurrence of which he was entirely ignorant and unconscious. Besides, as the will was signed in the street and the signature of the witness attached in the office of the building adjoining the street, the prima facie presumption is that the witness did not see the testator sign the paper. There is not one word in the evidence to rebut this presumption.

When the attestation clause to an instrument purporting to be a last will recites all of the facts essential to its due attestation as a will, and it is shown that the alleged testator and those whose names appear thereon as witnesses actually affixed their names to the paper, the presumption arises that it was executed in the manner prescribed by law for the execution of wills. Underwood v. Thurmond, 111 Ga. 325 (36 S. E. 788); Wells v. Thompson, 140 Ga. 119 (78 S. E. 823, 47 L. R. A. (N. S.) 722, Ann. Cas. 1914C, 898); Shewmake v. Shewmake, 144 Ga. 801 (87 S. E. 1046); Moore v. Walton, 158 Ga. 408 (123 S. E. 812). From this full attestation clause, in applying the above principle, it may be said that it will be presumed that the will was properly attested by the subscribing witnesses. But such presumption is rebutted by the clear proof to the contrary. Underwood v. Thurmond, supra. Here the uncontradicted evidence overcomes the presumption.

Applying the rulings above made, the propounder failed to prove the due execution of this will; and the verdict of the jury propounding the same is contrary to the law and the evidence. It follows that the trial judge erred in refusing to grant the new trial; and the judgment in the main bill of exceptions must be reversed.

By the amendment to her caveat, which is set out in full above, the caveatrix admits that the paper sought to be propounded as the will of H. S. Johnson was signed by him when he was prima facie of testamentary capacity; and that after he signed the same the three persons whose names appear on said paper as witnesses did sign their names on said paper underneath the attestation clause; but she alleges that said paper was not in fact signed or acknowledged by said Johnson in the presence of said witnesses, nor did said witnesses attest 'and subscribe the same in the presence of said Johnson, and therefore said paper is not a legally executed will. She further says that, having admitted a prima facie case, she assumes the burden of proving the grounds of her caveat, and claims the right to begin the introduction of the evidence and to the opening and conclusion of the argument. As the attestation clause to said instrument recites all the facts essential to its due execution as a will, and the caveatrix admits that the alleged testator and those whose names appear thereon as witnesses actually affixed their signatures to the paper, the caveatrix admitted a prima facie case, which entitled her to the opening and conclusion. Underwood v. Thurmond, Wells v. Thompson, Shewmake v. Shewmake, Moore v. Wallon, supra. Having admitted a prima facie case, the caveatrix was entitled to the opening and conclusion. In re Arledge’s Will, 172 N. C. 563 (90 S. E. 567). It follows that the objection of the propounder to the allowance of said amendment, on the ground that it did not admit a prima facie case which entitled the caveatrix to the opening and conclusion, is without merit, and the trial judge did not err in overruling such objection and in allowing said amendment. The error assigned in the cross-bill of exceptions is that the court erred in allowing said amendment and in giving to the caveatrix the opening and conclusion. It follows that this assignment of error is without merit.

Judgment on main hill of exceptions reversed; on cross-hill affirmed.

All the Justices concur, except Beclc, P. J., and Gilbert, J., who dissent.