Argo v. Geise

164 S.E.2d 134, 224 Ga. 695, 1968 Ga. LEXIS 910

• Court: Supreme Court of Georgia
• Decided: October 15, 1968
• Docket: 24791
• Status: Published

Opinions

Nichols, Justice.

It is necessary only to consider whether the signature was acknowledged by the testatrix. While the record contains affidavits of each subscribing witness that the testatrix did not affix her own signature to the writing and did not acknowledge her name appearing in the body of the writing at the time it was signed by the three witnesses in her presence and in the presence of each other, one of the three witnesses submitted a further affidavit in which she swore: “She informed us that she wanted us to witness her will. She handed us a piece of paper that was folded in such a manner that we could see no writing on it and Lucille S. Smith, Frances T. Smith, and I signed our names on it. This was the same piece of paper or papers that was filed in the Court of Ordinary, Sumter County, by John Thomas Argo as the last will and testament of the said Betty C. McKee. Said papers now bearing the filing date of February 8, 1968, over the signature of Eugene Horne, Ordinary. I examined said papers recently at a hearing in the court of ordinary before the said Eugene Horne when said papers were offered as the last will and testament of Betty C. McKee. When I examined said papers at said hearing I recognized my signature thereon and at that time said papers were unfolded and I saw there was other writing thereon. At said hearing I saw “Betty McKee” handprinted on said papers as they were unfolded and I am not saying that the said Betty C. McKee did not -intend this to be her signature, it was on the paper or papers that Lucille S. Smith, Frances T. Smith, and I signed at the instance and request of Betty C. McKee and that is all I know about it. Betty C. McKee was of sound and disposing mind and memory at the time the three of us aforesaid signed our names to said paper or papers. I will not state there was no writing or signature on the paper Betty C. McKee asked the three of us aforesaid to witness as her will, but there was none visible because of the manner in which it was folded.”

“The testator must either sign in the presence of the attesting witnesses or acknowledge his signature to each of them in whose presence he did not sign. Webb v. Fleming, 30 Ga. 808 (1) (76 AD 675); Wood v. Davis, 161 Ga. 690 (1) (131 SE 885).” Thornton v. Hulme, 218 Ga. 480, 481 (128 SE2d 744). Thus under the facts of the present case where no witness actually saw the testatrix sign the will and where the testatrix did not acknowledge her signature thereon the trial court did not err in granting the motion of the caveatrix for a summary judgment.

Judgment affirmed.

All the Justices concur, except Nichols, J., who dissents.