Huff v. Huff , 41 Ga. 696 ( 1871 )

LOCHRANE, C. J.

We learn from this record that Warren C. Huff, the executor of one Daniel Huff, propounded his will for probate, in solemn form, in the Court of Ordinary of Muscogee county. James Pluff and others filed their caveat, which was appealed to the Superior Court, by consent, where it came on for trial, at the May Term, 1870, and upon the trial, several causes were alleged by caveators against the will, only a part of which if will become our duty to dispose of. The jury found in favor of establishing the will. The first objection was to the signature of Daniel Pluff to the will. The will shows that he signed below the attestation clause instead of above it. The second- objection was, that one of the witnesses who signed was suggested to the testator, and did not know him personally before the time of his acting as witness.

1. Counsel for caveators requested the Judge to charge the jury, that the signature below the attestation clause was not a good signature, which the Court refused, and did charge, that if it appeared that the will was signed by testator below said clause, and the jury believed from the evidence that, it was so signed by testator, with the intention to sign it as his will, then, in law, it was a good Signature of the will. And this is the first ground of error assigned. Our Code, section 2379, speaking of the formalities of the execution of a will, says, it should be in writing, signed by the party making the *same, and by some other person in his presence, and by his express directions, and shall be attested and subscribed in the presence of the testator, by three or more competent witnesses.

By the Act of 1752, (see 25th, George the II.,) being an Act for avoiding and putting an end to certain doubts relating to the attestation of wills, etc., etc., we find the same provision affirmed from 29th, Charles the XI. “All devisees, etc., shall be in writing, and signed by the party so devising the same, or by some other person, in his presence and by Ms express direction, and shall be attested and subscribed in the presence of said devisor by three or four credible witnesses.” The Code only changes the phraseology of a word or two, and with these we have the whole law, directing the manner of executing and attesting wills. They shall be signed by the party.

Now, looking at this will, we find it was signed by the party, and the place of signing after the attestation clause does not change the fact or invalidate the execution. We take the whole •instrument and the signature of Daniel Huff in connection therewith, and find that the formalities, as well as the legalities of the execution, have been complied with. He has signed the will as his will, with three witnesses to the fact, who also signed, attesting añd subscribing their names. If we go into the most minute details of the law on this subject, we find nothing that contravenes this position. A will written on one side of a sheet, with the signature of the testator and witnesses, held, was a signing at the “foot or end,” under the statute: Jermyn v. Hervey, 1 English Law and Equity Reports, 634. .A blank of about ten lines was left between the conclusions of a will and the signature of testator and witnesses. The will was held good: 1 English Law and Equity Reports, 594. In Jonele v. Hall, 4 Comstock’s New York Reports, 140, although a map referred to in the will, as a part thereof, followed the signatures, it was held a sufficient compliance with the statute of signing at the “end:” 30 Law and Equity; 147. Under law, no place is designated and no attestation clause is prescribed. A will *signed without attestation clause is good: 2 R. I., 88; 3 Bradford N. Y, 355.

' A will under section 1611 of the Code of Alabama, which relates to the signing of the will, and is a substantial transcript of 29, Charles XI., held under such section in Armstrong v. Armstrong, 29 Alabama, 538. “Although testator’s name is not written by himself, nor subscribed to the will, yet, if it be written in the beginning of the will by another, in his presence, and under his direction, and if it be acknowledged by him to the attesting witnesses,” it is good.

No rule has been rigidly laid down on this subject, and we find, even under the English Statutes, a more technical definition than our own by specifying the end of the will, that the rules have been uniformly to hold a substantial compliance sufficient. In notes to page 282, Redfield on Wills, Part 1st, where the will fills two sides of a sheet of paper, leaving no room on the second page for the signatures, which were written along the side of the will on the third page, this was held sufficient. So, also, when the attestation was opposite to the end of the will, upon the third side of the sheet, the will ending on the second side; so, also, when the testator wrote his name, cross-wise upon the side of the paper, near the foot, the witnesses names being at the bottom of the page. And we might multiply authorities, but enough has been glanced at to sustain the judgment of this Court in the case before us, that there was no error in the charge of the Court. If the jury believed from the evidence that it was so signed by the testator, with the intention to sign it at his will, it was a good signature, for such is the law of Georgia.

2. The Court charged the jury that if they believed from the evidence that one of the witnesses was suggested to testator as a witness to his will, and testator assented to such •suggestion, such assent was, in law, a request, or equivalent to a request. This is the second ground of error assigned. The facts in the case were substantially as follows: Daniel Huff went to the warehouse of Gray, Bedell & Hughes, bringing with him Mr. Stewart, his object being to execute *the will which he had with him. Mr. Gray was out, one of the witnesses he desired. After waiting some time for him, Major Alexander came in, when Mr. Bedell stated to testator that he would answer the purpose as well. Testator said that he was not acquainted with him. Bedell said that he would introduce him, which he did, remarking that testator wanted him to witness his will. They all stepped to a desk and executed the paper. Out of these facts grew the charge of the Court. We are of opinion that there was no error in the law given by the Judge to the jury.

The Code provides no special formalities about the witnesses to a will. It is sufficient if they attest and subscribe the will in the presence of the testator. The ■ law implies the request in the consummation of the act, and the authorities support this reasonable and legal proposition. In Brown v. DeSelding, 4 Sandford, Supreme Court, New York, 10: “When witnesses were sent for by the attendants of the testator, in his presence and without objection, and upon their introduction he sets him to the execution of his will, he adopts the act of his attendants, and makes their request his requests.” In Peck v. Cary, 38 Barb., New York, 77, witnesses were called in by the person who drew the will, who asked them to witness testator’s will, testator standing close by and saying nothing; they witnessed it. This was held sufficient. In Gilman, 38 New York, 364, two witnesses were called in by one who was with testator, who said to them, Mr. G. requests you to witness his will, when they signed, testator making no objection; held good. One case is found where the party was deaf, and the witness were presented substantially as in- the case just cited, and it was held sufficient. And we lay down the rule of law to be clearly established that no special request by the testator is necessary to constitute the attesting witnesses competent. If he does not object his assent is equivalent to a request, and is conformable to the requirements of the law.

3. Counsel for caveators requested the Judge to charge in effect that, if Alexander, the witness referred to, knew nothing of the testable capacity of the testator, he was not in law *an attesting, though a subscribing witness, and the will in that case was void. The reply of the Judge was, “that is the law, gentlemen. I give you that in charge. But furthermore, I charge you that if he was introduced to him and looked at him, the law .implies that he knew whether or not he had testable capacity.”

The argument in this, case has been pressed uoon the meaning of the word attest in the Code, that it implies relation to the capacity of the testator at the time of the execution. The rule laid down as the judgment of this Court, in Potts v. House, is simply to the effect “that the opinions of subscribing witnesses to a will as to the sanity of the testator are admissible without stating the facts upon which they are founded.” And if the opinion of Alexander had been invoked in this case as to the sanity of the testator, the fact that he did not know him would have been a good objection to his giving his opinion; but to say under our Code that the attesting means simply witnessing and the subscribing only that such witness shall sign his name and the factum of the execution is the object of the attestation and subscription, that such probable inability to tes-' tify as to mental capacity rendered the will void, is not and never was the law of this State.

This would be to reverse all rules of law, and to hold that, because a subscribing witness, called in to prove th.e mere execution of- a will, did not know the testator sufficiently to know his mental capacity, it was to be presumed he was insane or incompetent, and declare his w-ill void.

The reverse of the rule is true, that all men are presumed to be s-ane until the contrary is proved. We recognize the doctrine that, except subscribing witnesses to a will, none but experts are competent to testify as to their opinion of the testator’s capacity. But we do not hold that even they are not subject to the closest cross-examination upon the grounds, facts and reasons for their opinions, of which the’ jury are the judges. And by close examination into1 the principles enunciated in the judicial expositions of the law on the subject, it will he found that the expression of the ^'opinion by' subscribing witnesses is admitted more upon the presumption of knowledge of a fact than the •caprice of an opinion. The two may be blended and the one include the other, but the very case is a demonstration of the difference.

We do not hold with the Judge below, that this request was the law. We do not so regard the office of a subscribing witness to a will, under our Code, that he is called on to adjudge the mental capacity of the testator. His act is to bear witness to the execution of the paper.

4. The addition of the Judge to the charge which is here assigned as error, we take in connection with the charge itself, and looking at the testator being sufficient to imply testable capacity, means, that all men are presumed sane—and being introduced to a man and seeing him personally, would not change the presumption, but strengthen it. But' as the issue was not in controversy and did not affect the merits of the case, and seems to express only, such a presumption as met the proposition of the charge, that the will was void by holding him to be a good subscribing and attesting witness, and that his introduction and cursory examination of him established only this much and did not go to the jury to weigh in their verdict, we do not consider the remárk such error as will invoke the reversal of this Court of the judgment below.

Judgment affirmed: