295 Ga. 225

FINAL C OPY

S14A0260. AMMONS et al. v. C LOUDS et al. HINES, Presidi ng Justice. Ellis Amm ons and Tomasia Am mons, the propounders of a will of Eulady Thomas , appea l the judgment o f the trial cour t granting a directed verdict in fa

vor of th e ca veators in th e trial of the caveat to th e will. For the reasons that fo llow, we reverse. Thomas executed a will on Octo ber 16, 200 7; she was blin d at the time. The will l eft al l of her property to her c aregive r, Tom asia A

mmon s, and Toma sia’s husband E llis (“Prop ounders” ). Follow ing Thom as’s death on April 26, 2011, Propounders petit ioned to prob ate the 2 007 w ill in solemn form. Margie Lee C louds and ot her members of Thoma s’ s family (“Caveators”) objected to the will’s v alidity on th e grounds , inter alia, t hat Th omas did not sign the will and that t he witnesses to the will’s ex ecution did not sign i t. The probate court admitted the will to pr obate i n sol emn form; Caveators app ealed to the supe rior court

and dem anded a

jury tri al. Although the jury found that the1 At trial on February 14, 2013, Caveators moved for a direc t ed verdict, and the trial court reserved judgment on the motion. The jury r eturned a verdict for Propounders, and on Marc h 8, 2013, Caveators filed

a written renewal of their motion for directed ve rdict. On March 19, 2013, the court entered judgment on the jury ’s verdict; the judgment did not mention the motion for directed verdict

. Caveators filed

a motion for judgment notwithstanding the verdict on March 22, 2013, a nd the trial court granted

the motion for directed verdict on August 26, 2013. See OCGA § 9-11-50 (b); Continental

Ins. Co. v. State Farm Mut. Ins. Co. , 212 Ga. App. 839, 840-842 (1) (443 SE2d 509) (1994).

2 OCGA § 53- 5-24 rea ds: When it appears that a will cannot be proved as otherwise provide d b y la w because at the time the will is offered for probate one or more of the subscribing witnesses to th e w il l i s d ea d o r m en ta ll y or ph ysi ca ll y incapable o f testifying or otherwis e inaccessible, the court may admit the w

ill to probate

in common or solemn formupon the testimony in person or by affida vi t o r b y deposition of at least two credibl e disinterested witnesses that the signature to the will is that of the individual whosewill it purports to be or upon other s ufficient proof o f such sig nature. This Code section shall not pr eclude t he court , in its discretion, f rom requ iring, i n addition, the testimony

in pers on or by deposition of any available subscribing witness or proof

of such ot

her per tinent fa cts and c ircumsta

nces as t he court may deem necessary

to admit the will to probate. 2 propou nded will was Thoma s’s valid last wi ll and tes tament, thetrial c ourt granted Caveators’ motion for directed verdict. 1 1. At the t

ime of trial, both witne sses to t he propounde d will we

re decea sed. Propounders sought to invoke OCGA § 53-5-24, und er whic h, when

a w itness to a w ill is not available to te stify, the trial c ourt may admit the will to probate “uponthe testimony in per son or by aff idavit or b y deposition of at least two cre dible dis intere sted wi tnesse s that th e signa ture to t he will is t

hat of the individual whose will it purports to be . . . .” 2 Propoun ders contend that the superior court e rred in exclu ding from trial c ertain testim

ony of Ke lly, t

he3

attorney who draft ed the w ill, a nd Lane , his offi ce as sistant , rega rding the authenticity

of Thom as’s sign ature. During Ke lly’s te stimony , Propounde rs showed him tw o other document s, prepa red by him, t hat we re signed by Tho mas in 2010 and 2011, and

asked whether it

was tru e that, in the c ourse of hi s work for Thomas, he had become “somewhat . . . a l ittle bit fam iliar with her signature.” Kelly resp onded that Thomas’s sign ature was differen t on each of t he documents he wa s shown, a nd differe nt still o n the 2007 w ill, but beca use he saw her sign th e 2010 and 2 011 documents , he could testif y t hat tho se signatures were h ers, even th ough diffe rent from each other. Prop ounders th en asked, even though Kelly was “not a handwriting expert or anything like that, but is the signatur e on the will, based upon your knowledge o f her signatu re, is itconsi sten t with her formal signatu re?” At this point, Cavea tors obje cted, arguing that Kelly

was not a handwrit ing expe rt and c ould not

testify as to such a conclusion, an d the court su stained the ob jection. Regarding Lane’ s potenti al tes timony , at a later point in the

tria l, Propounders stated to the court th at if they called Lane to testi fy, they w ould ask herwhethe r the sign ature o n the 2007 w ill was consiste ntwi th Thom as’s signature on th e 2010 and 20 11 do cume nts; Ca ve ators declared th at in such3 OCGA § 24- 9-901 re ads: (a) The req

uiremen t of aut hentication or identification as a condition precedent to admissibility shall be satisfied by ev ide nce suff

icient to s

upport a finding that the ma

tter in que stion is wha

t its proponent claim s. (b) By wa y of illustration

only, and not by

way of limitation, the following are examples of authentication or identification conform ing with the requ irements of this Code section: (1) Testimony of a witne ss with knowl edge that a matte r is what it is c laimed to b e; (2) None xpert opinion as to the gen uinen ess of handw riti ng, based up on familia

rity not acqui red for purposes of the liti gation; (3) Comparison by

the trier of fact or by expert wit

nesses with specimens which have been authenticated. Such specimens shall be 4 circumstance, they w ould rais e the same objection made when the question was asked of Kelly, and the court i ndicated that it would make the same ruling it had made at that time. Propoun ders did no t call Lane to testify. Propounders contend that Kelly and Lane shoul d have been permitted to identify the signatur e on the 2007 will as Thomas’s, based upon their familiarity with her signatur e. Harvey v. Sull ivan , 272 Ga . 39 2, 393 (2) (5 29 SE2d 889) (2000) (“[T]he prop ounder pu t on a series of witne sses who established their familiarity

with the testa trix's sig nature and tes tified t

hat thesignatur e on the will was hers” so as to sati sfy OCGA § 53-5 -24.). However, Propo unders nev er established that e ither w itness was familia r with Thoma s’s signa

ture so a s to be able to testify

that the signatur e on thewill wa s hers. See OC GA § 24-9-9 01 (b) (2); 3 Ham v. Ham, 257 Ga. App. 415, 417 (571 SE2d 441) (2002) (“A witnes sfurnishe d to the opp osite par ty no later than ten da

ys prior to tr

ial; (4) Appearance, conten

ts, substance, internal patterns, or other distinctive charac

teristic s, taken in c onjunction with cir cumstanc es; (5) Identification of a voice, w he ther he ard firs.thand or th roug h mechanical or electronic transmission or recor ding, by opinion based upon hearing the voice at any time u nd er circumstances connec ting it wi

th the alle ged spe aker; (6) Telephone conve

rsations, by e

vidence that a ca ll was mad e to the number assigned at the time by a telephone service provider to a partic ular person or busi

ness, if: (A) In the

case of a person , circum stances , including self-i d entification, show the person answering to be the one called; or (B) In the case of a

business, the call wa s made to a plac e of busines s and the conversation related to business reasonably tra nsac ted over the telephone; (7) Evidence that a document authorized by law to b e recor dedorfiled and in fact recorded or filed in a public of fice or a purported public record, report, statement, or data com pilation, i nany form, is f rom the pu

blic offi ce wher

e items of this natur

e are ke pt; (8) Evidence t

hat a document or data compilation, in any form: (A) Is in such con dition as to create no suspicion concer ning its a uthentic ity; (B) Was in a place where it, if authen tic , would likely be; and (C) Has been in existence 20 years or more at the time it i s offer

ed; (9) Evidence describing a process or sy stem used to produce a result and showing that

the process or sy stem produce s an acc urate result; or (10) Any method of

authentication or

identification provided by law. 5 can give la

y opinion testimony iden

tifying handwrit

ing if the witnes s knows the handwrit ing or is so fam iliar w ith it tha

t he or she

would re cognize

it.”) ; Jones

v. State , 165 Ga. App. 260, 260-261 (1) (299 SE2d 920) (1983) (Foundation laid4 Ham and Jones were decided under former OCGA § 24-7-6. Trial in this case was held on February 14, 2013, after the January 1, 2013 effective date of

OCGA § 24-9-901. Former OCGA § 24-7-6 was effective prior to January 1, 2013 and read: Proof of handwriting may

be resorted to in the absenceof direct evidenceof execution. In su

ch case , any

witness w

ho sh all swea r that he

knows or would reco gniz e the handwriting shall be com pe tent to testify as to his belief. The sourc e of his knowledge shall be a question for investigation and sha ll go ent ir ely to the credit and weight of his evidence.

5 OCGA § 53- 5-21 rea

ds: (a) A will may be proved in solemn for m after due notice, upon the testimony 6 by testimo ny that

the wit ness “ha d seen hi s brother' s signatu re on eno ugh

occas ions so that he though t he could recog nize it.”) 4 Rather, the only releva nt testimony that Propounders elicit ed from Kelly was that Thomas’s sig nature was inconsist ent

on the documents he had been shown while he was on the wi tness stand; Prop ound ers nev er pro ffered testimo ny fro m h im t hat he was familiar with her signa

ture so as to beable t o recogni ze it. And, simil arly, no foundati on

was laid for

Laneto testify that s he was familiar with Tho mas’s signatur e such that she coul d recog nize it if see n. Thetrial c ourt did not e rr in exc luding the testimony the Pro pounders sought to elicit. 2

. The prop ounded wil l was no t self-pro ved; had it bee n, it wou ld be “rebuttably

presumed to have b een execu ted with the requisit e test ame ntary formalit ies. [Cit.]” Martina v . Elrod , 293 Ga . 538 (1) (74 8 SE2d 412) (2 013). Even if not self-proved, under OCGA § 53-5-21 , 5 “[a] will ma y be proved inof

all the witnesses in life and within the jurisdiction of the court, or

by proof of t

heir sign atur es and that of the testator as provided in Code Section 53-5-23. The testimony of only one

witness shall be required to prove t

he will in s olemn for

m if no caveat is filed. If a

will is self-proved , compliance with si gnatur e requir ements and other re quir em ents of execution is presumed subject to rebuttal without the necessi ty of the testimony

of any witness upon filing the will and affidavit annexed or attached thereto. (b) The petit

ion to prob ate a wil l in solemn f orm shall set forth the full name, the place of domicile, and the date of death of the testator; the mailing address of the petitioner; the name s, age s or major ity s tatus, and addresses of the surviving spouse and of all the other

heirs, stating their relationship to the testator; and whether, to the kno wledge of the petitioner, any other proceedings with respect to the pro bate o f another purported will of the testator are pending in this state and, if so, the names and address es of the propo

unders a nd the names, addr

esses, a nd age s or major

ity status of the beneficiaries under the other purported will. In the eve nt full particulars are lacking, the petition shall state the reason s for an y om ission. The

petition shall conclude with a praye

r for issuance of letters testamentary . If all of t he hei rs ackno wledge service of the petition and notice and shall in their acknowledg ment assent thereto , and if th ere ar

e no other procee dings pe

nding in this state with respect to the probate of another purported will of the dece dent, the will may be proba ted and le tt er s t he re up on ma y is su e w it ho ut fu rt he r d el ay.
6 OCGA § 53- 5-23 rea

ds: (a) In a ll proce edings for the probate of a will in

common form or sole

mn form, witnesse s to the will may be examined in person or by wr itten interrogatories whichshall be answered in writing and under oath be fore a not ary public or by depositions or othe r discovery proced ures unde r the same circumst ances a s other c ivil cases. The prob ate cour

t shall hav e the pow er to compel the attendance of witnesses in the same

manner a s the supe

rior cou rt. (b) Where witnesses are to be examined as authorized by this Code section, a photocopy of the

will may be exhibite d to the wit

nesses in lieu of the

origina l will. The testimony of

a witness to whom a photocopy of a will has been e

xhibited sha

ll be given the same weight as thoug h the original will had been exhi bi ted to the witness. 7 solemn form

after due notice, upon the testimony of all the wit nesses in life a

nd within the juri sdiction

of the court, or

by proof of

their si gnature s and tha

t of the testa tor as provided in [OCGA §] 53- 5-23.” 6 See a lso Singelman n v.(c) The provisions of th is Code sec

tion shall not be construed as repealing any other statutory provi sion pres c ribing a method or procedure for the taking of testimony by interrog atories or depositions, but as supplementar y of such other provisions and cumul ativ e to su ch other provisions and as providing additional means or method s of takin g the te stimony

of subscr

ibing wit nesse s to a will in proceedings for the probate of the will. The taking or procuring of testimony i

nthe manner prescribed by

this Code section shall be sufficient for all purpos es of the probate proceedings, notwithstanding any other statute. 8 Singelma nn , 273 Ga . 894, 896 ( 1) (548 SE2d 3 43) (2001)

. Although the witnesses to the prop ounded will wer e deceased at the ti me of trial, they were both i n life earlier in th e proceed ings. U nder OCGA § 53-5-23 (a), a witness to a will may te stify by writt e n interro gatorie s or depositi on. The int errogat ory tes timony of one witnes s was introduced at trial. Using Georgia

ProbateCourt Sta

ndard Form

6, the w itness test ified that Tho mas signed the will, acknowle dged it, knew that she wa s executing her last will and testament at the time she did so, exe cuted i t volunta

rily, and appe ared to be of sound and disposing mind; the witness also te stified that he witnesse d the will at Thoma s’s r equest, in her pre sence , and tha t he signe d the wil l as a w itness. However, this same witne ss testified by deposition that h e had no mem ory of signing as a witne ss to thewill, a lthough the

signatur e appe ared to be his, and that when the wil l was pur portedly signed, he did not

watc h Thoma s sign it, but faceda diffe rent dire ction a nd spoke to another

person. Rele vant po r tions of7 No testimony of the second witness wa s presented. It is uncontroverte d that she was not

capable of testify

ing at any time during the pendency of the case.

8 The jury wa s instructed that witness credibility was f or its determination, which was to be done in consideration of matters such as a witness’s interest in the outcome of the case. 9 that deposition were rea d at trial. 7 T h is Court ha s held tha

t the te stimony

of a singl e witne ss to a w ill’s

execu tion by the methods provided f or in OCGA § 53-5-23 ca n authoriz e the finder o f fact to conclud e that the will was pr operly executed. Pete rs on v . Harrell , 286 Ga. 546 (1) (6 90 SE2d 1 51) (201 0). And, an inter rogatory su ch as that used here meets a propoun der’s burd en to establish a prima facie case. See Singelma nn , supra. Although there was conflicti ng evidence from the witnes s

as to whether the wil l had been properl y executed, that simply created factu al questions for the j ury’s resoluti on. As to the sec ond witne ss, the re was evidence from both Pr opound ers that she sig ned the will in Th omas’s presence. 8 [A] directed verdict is authorized only when “there is no conflict in the evi denceas to a

nymaterial iss ue and t

he evide nce int roduced, with all re asonabl e deduc tions therefrom, shall demand a particular verdict.” OCGA § 9-11-50 (a); Scoggins v. Strickland , 265 Ga. 417 , 418 (2) ( 456 SE2d 208) (19 95). Dyer v. Souther , 272 Ga. 263, 2 65 (2) (5 28 SE2d 2 42) (200 0). Cavea tors note that there is prec edent of t his Court s tating t

hat whe n a10

testa tor is blind, su ch as Thoma s was, more t han the ordinary

degree of “positiv e proof that [s]h e actually knew and assented [to the contents of the will] is required to repe l any su spicion w hich circums tance s may

have c ast upon t

he good faith of the transa ction . . . .” Woodson v. Hol mes , 117 Ga . 19, 29 (5 ) (43 SE 467) (1903). See a lso Hart v. Fortson 263 Ga. 389 , 391 (435 SE 2d 45) (1993) (Flet cher , J., d

issenti ng) (In som e circumsta nces, includin g a blind testa tor, “the propounder must present strong pro of that t he test ator kne w the contents of the wi ll. [Ci ts.]” ). But, to the extent th at this prece dent im posed a higher burden upon Propounders to present evidence of Thomas’s knowle dg e of the conten ts of th e will, the jury was so instructed, and there was evidence t hat the wil l was prepared accordi ng to Thomas’s wishes, and was read to her before she sig ned it. The issues Propounders raised w ere properlyplace d beforethe jury , and it was error for the trial c ourt to grant Caveators’ motion for direc ted verdict. Judgme nt reve rsed. A ll the Ju stice s concur .
Decided May 5, 2014 – Reconsideratio n denied Jun e 2, 2014. Wills. J asper Su

perior C ourt. Be fore Judge Wingfiel d.11

Fears, Lawrence & Turner, Kenn eth G. Lawrence , for app ellant s. Martin L. Fierm an, Stephen R. Morris , for app ellee s.