Shaw vs. The State of Georgia.

1868, had a party at his house, and was with the company till about midnight, then went to bed, and was in bed next morning at the time the cotton was put upon his lot, and after till 9 o'clock, A. M.; that it was a back lot, cut off from his residence lot by an alley, and that a white man, whose face was partly concealed, and who was not Shaw, was in the wagon with Paldo when he was going to Sealey's. His counsel offered one Sheridan to show all the facts connected with the payment of said hire, so as to show how Paldo got the money which he had left with the clerk. What these facts were is not stated. The Judge rejected the evidence.

The jury found Shaw "guilty of simple larceny in the second degree." His counsel moved for a new trial, upon the grounds that as simple larceny was not a felony there could be no principal in the second degree in it, and therefore said verdict was contrary to law; that the Court erred in rejecting Sheridan's evidence, and upon various others, all resolvable into this: that the verdict was without evidence, because there was nothing to show that Shaw directly or indirectly, was present when the larceny was committed, or had counseled, procured or commanded any one to take said cotton, or had received it after it was stolen, etc.

The Judge refused a new trial, and error is assigned on each of said points. (A motion was made to dismiss this writ of error, because the evidence was not in the bill of exceptions. It was overruled, because the evidence taken at the trial by the Court was attached to the bill of exceptions, and was identified by the signature of the Judge.)

E. L. DOUGLASS, E. R. HARDEN, D. A. WALKER, for plaintiff in error.

S. W. PARKER, Solicitor General, by A. HOOD, for the State.

WARNER, J.

The defendant was indicted as the actor or absolute perpetrator of the offence charged in the indictment, and the jury found him guilty of the offence charged in the second degree.

Duffie et al., vs. Corridon.

This was error, as was ruled by this Court in Washington vs. The State, 36th Georgia Reports, 222.

It was also error in the Court below in not allowing the witness, Sheridan, to relate all the facts to the jury as to how Paldo came by the money which was paid to the liverystable man for the hire of the wagon and mules.

Let the judgment of the Court below be reversed, and a new trial be had.

OWEN DUFFIE et al., propounders, plaintiffs in error, vs. WILLIAM CORRIDON, caveator, defendant in error.

The witnesses to a will must subscribe their names, as witnesses, after the will is signed by the testator. It is not enough that they acknowledge signatures made the day before the execution of the will, even though such signatures were in the presence of the testator, if, in fact, the will was not then signed by the deceased.

Attestation of Wills. Before Judge JOHNSON. Muscogee Superior Court. May Term, 1869.

In 1868, Mrs. Corridon, being in extremis, wished to make her will, conveying realty and personalty. It was written and read over to her; she was satisfied with it, and declared it to be her will. Four persons (including the scrivener) who were present, signed it as witnesses. Next morning the scrivener remembered that she had not signed it. He went back to her to have it signed. Two of the original witnesses being absent, he took the other one, and a different person, again read over the paper to her, and she again said it was her will, and signed it by her mark in presence of these three persons. The names of the absent original witnesses were erased, the new person subscribed his name as a witness in her presence, and that of the others, and they, without rewriting their names, each acknowledged his signature to be genuine, and adopted it in presence of testator and the other witness.

She died, and this paper was propounded by Duffie et al.,

Duffie et al., vs. Corridon.

as her will. This was resisted upon several grounds, among which was, that said paper had never been so signed and attested as to make it a will. The facts aforesaid were shown. The Court charged the jury that if, on the first day, said paper was read over to her, and she acknowledged it to be her will in presence of four witnesses, who then and there subscribed their names thereto as subscribing witnesses, and she omitted to sign her name to the paper, or to authorize another to do it for her, and on the next day two of said subscribing witnesses being absent and two present, the names of those absent were erased, and the paper was read over to her in presence of the two witnesses of the first day, and of another witness, and then and there she signed her name, and the new witness signed his name, and the two other witnesses, without re-writing their names, then and there acknowledged and adopted as their signatures the signatures which they had made the day before, and all other requisites. were complied with, such attestation was not sufficient to make said paper a good will. The jury found against the paper. A motion for new trial was overruled. Error is assigned. upon said charge, (minor points being waived.)

MOSES & GERRARD, for plaintiffs in error, said an adoption of previous signatures of testator is good: 1st Vesey, Jr., 12; 2 Vesey, Sr., 454; 6 V. & B., 362; 6. Bing., 310; 17 Peck, 363; 30 Ga. R., 808. Under Statute (1 Vic.,) such adoption by witness of his previous signature is bad: 7 Eccl. R., 416-17-18, 429, 430. There is a distinction between acknowledging a signature and acknowledging a will: 10 Paige's Ch. R., 92. This refinement not adopted in America: Redfield on Wills, 229, 230; 2 Grattan, 439, 67; 6th Grattan, 57; 16 B. Munroe, 102; 1 B. Munroe, 116; 24 Penn. S. R., Flaming's Will; 25 Conn. R., 464; 1 Jarman on Wills, 77; Walker vs. Hunter, 17th Ga. R., 364; Redfield on Wills, 230; 1 Rob., 772; Jarman on Wills, (Ed. 1861,) 77; Irwin's Code, sec, 2442; 30th Ga. R., 32.

JAMES M. RUSSELL, for defendant, in reply, cited Irwin's Code, secs. 2379, 2380; Statute of Frauds, 29 Car., 11, c. 3,

Duffie et al., vs. Corridon.

sec. 5; Statute, 1 Vic., c. 26, sec. 9; 6 Hill's (N. Y.) R., 303; 1 M. & W. R., 168; 1 Gr. Ev., sec. 569, 569, (a); 11 Allen (Mass.) R., and cases cited; 8 H. L. Cas., 160; Redfield on Wills, 229, 230, 243, notes; 13th Curtis, 131, 341, 374, 44, 429, 537; 1 Jar. on Wills, 77; 1 S. & S., 132; 1 Rob., 772; 2 Rob., 311; 18 Ga. R., 396; 9 Burr, 54; 10 Watts, 153; Wheat., 395; 8 Watts & S., 21, 26; 2 Casey, 219.

MCCAY, J.

The will in this case was read over to the testatrix, and was signed by three witnesses, but not by the testatrix. This, as we suppose, was a mere mistake, but it does not appear whether they thought this was sufficient, or whether the failure of Mrs. Corridon to sign was a pure accident. At any rate, when, next day, it was noticed that the testatrix had not signed, the scrivener procured two of those who had already signed, and a third, and the testatrix signed the will in the presence of these three. The new man signed his name, and the two others acknowledged their signatures made the day before. Was this a sufficient signing and attestation under the statute? The words of our Code, section 2379, are as follows: "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 directions, and shall be attested and subscribed in the presence of the testator by three or more credible witnesses."

Section 2370 provides "that a witness may attest by his mark, provided he can swear to the same, but one witness cannot subscribe the name of another, even in his presence and by his direction."

Nothing is better settled than that a will, to be good, must be executed precisely according to the statute. Wills divert the property of the testator out of the channel fixed by law, and the law permitting this to be done must be followed. What is it the witnesses to a will attest? Principally the signature. The witnesses need not know the contents of the

Duffie et al., vs. Corridon.

will. The testator may merely acknowledge his signature before them, or may sign it, without saying to them it is his will. Any other fact in relation to the will, as the sanity of the testator, his knowledge of the contents, his intelligent assent to the will, may be proven by other witnesses. The signature is the only fact which must be proven by the chosen. witnesses. When, therefore, the statute says the will must be signed, and attested and subscribed by three witnesses, the inference is strong that the meaning is, that the fact of the signing must be attested by three witnesses, and that they must subscribe as an evidence of their attestation to the signature. Was that done in this case? Two of these witnesses did not subscribe, as an evidence of their attestation, to the signing by the testatrix. Their signatures were subscribed as an evidence of what? That the testatrix consented to the will, knew its contents, but they were not subscribed as an attestation of the signature of the testatrix; and that is the very thing, the only thing, the statute requires of the witnesses. As we have said, every other fact may be proven by other witnesses. But this fact, to-wit: the signature of the testatrix, can only be proven by the subscription of the witnesses. Section 2380 of the Code declares that one witness cannot subscribe the name of another, even in his presence and by his direction. He must subscribe it himself. Does not this clearly indicate that the manual act of subscription by the witness is necessary? In our judgment, therefore, the witness must subscribe as an attestation of the fact he is called on to attest, to-wit: the signature of the paper by the maker of the will.

It is said that the testator may acknowledge a previous signature. This is expressly provided for by section 2383 of our Code, and was also the common law. But it will be noticed that both the Statute of Frauds and our law allow the testator's signature to be made by a third person if it is done in the testator's presence and by his express direction. And under such a law it might well enough be held, that if the testator, in the presence of the witnesses, acknowledged the signature, it was sufficient. But no such permission is