Wells v. Thompson , 140 Ga. 119 ( 1913 )

Fish, C. J.

(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 the persons .whose names appeared as attesting witnesses, Graham and Miller, were at that time non-residents of this State, and were therefore not within the jurisdiction of the court. The proponent had no means of compelling these two non-resident witnesses to attend the trial in person, and it was not obligatory upon him to procure and to introduce in evidence upon the trial their interrogatories or depositions, notwithstanding the declaration in the Civil Code, § 3861, that “Witnesses to wills- may be examined by commission, in the same cases, and under the same circumstances, as other witnesses in other Cases.” This provision is merely permissive, and a will may be admitted to probate upon other legal and satisfactory proof, without the interrogatories or depositions of non-resident witnesses. The fact that the depositions of a witness could have been taken does not prevent proof of his handwriting. Denny v. Pinney, 60 Vt. 524 (12 Atl. 108); Allison v. Allison, 104 Ia. 130 (73 N. W. 489); Turner v. Turner, 1 Litt. (Ky.) 101; Clark’s Will, 75 Hun, 471 (27 N. Y. Supp. 681); Wilson v. Collum, 9 L. R. Ir. 150; McKeen v. Frost, 46 Me. 239. The Civil Code, § 5834, provides: “Whenever the subscribing witnesses to an instrument in writing are dead, insane, incompetent, or inaccessible, or, being produced, do not recollect the transaction, then proof of the actual signing by, or of the handwriting of, the alleged maker shall be received as primary evidence of the fact of execution.” The general rules of evidence are applicable in regard to the admissibility of evidence to prove the execution, existence, and genuineness of a will. Gillis v. Gillis, 96 Ga. 1-18 (23 S. E. 107, 30 L. R. A. 143, 51 Am. St. R. 121); 40 Cyc. 1284. How could the trial court compel a witness in a foreign jurisdiction to appear there before commissioners, that his interrogatories or depositions might' be talcen? Moreover, wills are documents of too important and valuable character to require them to be sent into foreign jurisdictions, that the interrogatories or depositions of witnesses there may be taken, — the instrument may be lost or destroyed in transmission ; and besides, there is no method by which foreign commissioners may be required to return the paper to the trial court of this State. The statutory rule requiring that a- will must be proved in solemn form by all the attesting-witnesses is of necessity dispensed with when the production of. all is impossible because one or more may be beyond the jurisdiction of the court, or can not be found.. or are dead, or insane, or otherwise incompetent to testify at the time of trial. In such cases the execution of the will may be proved by the subscribing witnesses who can be produced, and proof of due attestation by the requisite number of witnesses may be made by proving the handwriting of the others. ’40 Cyc. 1307, 1308; 14 Enc. Ev. 417. Numerous cases are cited in these encyclopedias in support of the principle announced. There is nothing in conflict with the propositions hereinbefore stated in the decisions, in Deupree v. Deupree, 45 Ga. 417, Brown v. McBride, 129 Ga. 92 (58 S. E. 702), or Bowen v. Neal, 136 Ga. 859 (72 S. E. 340), relied on by counsel for defendant in error. The rulings in these cases, considered in connection with the facts involved, tend to support what we now hold. In the Deupree case, which was tried in Oglethorpe county, the proponent moved for a continuance on the grounds, that two of the attesting witnesses resided in the county of Meriwether, this State; that they had been served with subparnas, and were absent; that the expenses of attending court had been tendered to both of such witnesses; and further, that the other subscribing witness resided in the State of Alabama. A continuance was refused, and the ruling was upheld by this court on the ground that the witnesses did not reside in the county, in which the trial was had, and, under the general law of the State, were not compelled to attend court in another county. It was further held that the interrogatories of all the witnesses could be used. In Brown v. McBride, there were three witnesses to the instrument offered for probate. One of them testified by interrogatories that he and the other two witnesses signed the instrument in the presence of the testator and in the presence of each other, but that according to his recollection the testator did not sign it in the presence of this witness, and that he did not know whether the other two witnesses were present when the testator signed. It was proved on the trial that one of the other witnesses was dead, and that the other, about fifteen years before the trial, had left the county and had not been heard of since. It was shown that the signature to the instrument was the genuine signature of the testator. It was held by this court: “When it is sought to prove a will in solemn form, where one of the subscribing witnesses is absent, it is competent to prove the signature of such witness, after proving that the witness is inaccessible. Such proof .for the purpose mentioned is equivalent to proof that the witness is dead or beyond the jurisdiction of the court.” It was further held that the evidence was of such character as to support the verdict in favor of the validity of the will. In Bowen v. Neal, one of the witnesses was dead; 'and it was said that proof of his handwriting could be shown. The ease was decided adversely to the proponent on the ground that only one of the three witnesses was introduced to prove the will, when it did not appear that the other subscribing witness was shown to be beyond the jurisdiction of the court, as he resided in another county of this State, and his interrogatories could have been taken.

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 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 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.

All the Justices concur.