AMMONS v. CLOUDS

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Supreme Court of Georgia.

AMMONS et al. v. CLOUDS et al.

No. S14A0260.

Decided: May 5, 2014

Kenneth Gene Lawrence, Fears Lawrence & Turner, P.C., Jackson, for Ammons et al. Martin L. Fierman, Stephen R. Morrs, The Fierman Law Firm, Madison, for Clouds et al.

Ellis Ammons and Tomasia Ammons, the propounders of a will of Eulady Thomas, appeal the judgment of the trial court granting a directed verdict in favor of the caveators in the trial of the caveat to the will. For the reasons that follow, we reverse.

Thomas executed a will on October 16, 2007; she was blind at the time. The will left all of her property to her caregiver, Tomasia Ammons, and Tomasia's husband Ellis (“Propounders”). Following Thomas's death on April 26, 2011, Propounders petitioned to probate the 2007 will in solemn form. Margie Lee Clouds and other members of Thomas's family (“Caveators”) objected to the will's validity on the grounds, inter alia, that Thomas did not sign the will and that the witnesses to the will's execution did not sign it. The probate court admitted the will to probate in solemn form; Caveators appealed to the superior court and demanded a jury trial. Although the jury found that the propounded will was Thomas's valid last will and testament, the trial court granted Caveators' motion for directed verdict.1

1. At the time of trial, both witnesses to the propounded will were deceased. Propounders sought to invoke OCGA § 53–5–24, under which, when a witness to a will is not available to testify, the trial court may admit the will to probate “upon the testimony in person or by affidavit or by deposition of at least two credible disinterested witnesses that the signature to the will is that of the individual whose will it purports to be․”2 Propounders contend that the superior court erred in excluding from trial certain testimony of Kelly, the attorney who drafted the will, and Lane, his office assistant, regarding the authenticity of Thomas's signature. During Kelly's testimony, Propounders showed him two other documents, prepared by him, that were signed by Thomas in 2010 and 2011, and asked whether it was true that, in the course of his work for Thomas, he had become “somewhat ․ a little bit familiar with her signature.” Kelly responded that Thomas's signature was different on each of the documents he was shown, and different still on the 2007 will, but because he saw her sign the 2010 and 2011 documents, he could testify that those signatures were hers, even though different from each other. Propounders then asked, even though Kelly was “not a handwriting expert or anything like that, but is the signature on the will, based upon your knowledge of her signature, is it consistent with her formal signature?” At this point, Caveators objected, arguing that Kelly was not a handwriting expert and could not testify as to such a conclusion, and the court sustained the objection.

Regarding Lane's potential testimony, at a later point in the trial, Propounders stated to the court that if they called Lane to testify, they would ask her whether the signature on the 2007 will was consistent with Thomas's signature on the 2010 and 2011 documents; Caveators declared that in such circumstance, they would raise the same objection made when the question was asked of Kelly, and the court indicated that it would make the same ruling it had made at that time. Propounders did not call Lane to testify.

Propounders contend that Kelly and Lane should have been permitted to identify the signature on the 2007 will as Thomas's, based upon their familiarity with her signature. Harvey v. Sullivan, 272 Ga. 392, 393(2), 529 S.E.2d 889 (2000) (“[T]he propounder put on a series of witnesses who established their familiarity with the testatrix's signature and testified that the signature on the will was hers” so as to satisfy OCGA § 53–5–24.) However, Propounders never established that either witness was familiar with Thomas's signature so as to be able to testify that the signature on the will was hers. See OCGA § 24–9–901(b)(2)3 ; Ham v. Ham, 257 Ga.App. 415, 417 (571 S.E.2d 441 (2002) (“A witness can give lay opinion testimony identifying handwriting if the witness knows the handwriting or is so familiar with it that he or she would recognize it.”); Jones v. State, 165 Ga.App. 260, 260–261(1), 299 S.E.2d 920 (1983) (Foundation laid by testimony that the witness “had seen his brother's signature on enough occasions so that he thought he could recognize it.”)4 Rather, the only relevant testimony that Propounders elicited from Kelly was that Thomas's signature was inconsistent on the documents he had been shown while he was on the witness stand; Propounders never proffered testimony from him that he was familiar with her signature so as to be able to recognize it. And, similarly, no foundation was laid for Lane to testify that she was familiar with Thomas's signature such that she could recognize it if seen. The trial court did not err in excluding the testimony the Propounders sought to elicit.

2. The propounded will was not self-proved; had it been, it would be “rebuttably presumed to have been executed with the requisite testamentary formalities. [Cit.]” Martina v. Elrod, 293 Ga. 538(1), 748 S.E.2d 412 (2013). Even if not self-proved, under OCGA § 53–5–21,5 “[a] will may be proved in solemn form after due notice, upon the testimony of all the witnesses in life and within the jurisdiction of the court, or by proof of their signatures and that of the testator as provided in [OCGA § ] 53–5–23.”6 See also Singelmann v. Singelmann, 273 Ga. 894, 896(1), 548 S.E.2d 343 (2001).

Although the witnesses to the propounded will were deceased at the time of trial, they were both in life earlier in the proceedings. Under OCGA § 53–5–23(a), a witness to a will may testify by written interrogatories or deposition. The interrogatory testimony of one witness was introduced at trial. Using Georgia Probate Court Standard Form 6, the witness testified that Thomas signed the will, acknowledged it, knew that she was executing her last will and testament at the time she did so, executed it voluntarily, and appeared to be of sound and disposing mind; the witness also testified that he witnessed the will at Thomas's request, in her presence, and that he signed the will as a witness. However, this same witness testified by deposition that he had no memory of signing as a witness to the will, although the signature appeared to be his, and that when the will was purportedly signed, he did not watch Thomas sign it, but faced a different direction and spoke to another person. Relevant portions of that deposition were read at trial.7

This Court has held that the testimony of a single witness to a will's execution by the methods provided for in OCGA § 53–5–23 can authorize the finder of fact to conclude that the will was properly executed. Peterson v. Harrell, 286 Ga. 546(1), 690 S.E.2d 151 (2010). And, an interrogatory such as that used here meets a propounder's burden to establish a prima facia case. See Singelmann, supra. Although there was conflicting evidence from the witness as to whether the will had been properly executed, that simply created factual questions for the jury's resolution. As to the second witness, there was evidence from both Propounders that she signed the will in Thomas's presence.8

[A] directed verdict is authorized only when “there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict.” OCGA § 9–11–50(a); Scoggins v. Strickland, 265 Ga. 417, 418(2), 456 S.E.2d 208 (1995).

Dyer v. Souther, 272 Ga. 263, 265(2), 528 S.E.2d 242 (2000).

Caveators note that there is precedent of this Court stating that when a testator is blind, such as Thomas was, more than the ordinary degree of “positive proof that [s]he actually knew and assented [to the contents of the will] is required to repel any suspicion which circumstances may have cast upon the good faith of the transaction․” Woodson v. Holmes, 117 Ga. 19, 29(5), 43 S.E. 467 (1903). See also Hart v. Fortson 263 Ga. 389, 391, 435 S.E.2d 45 (1993) (Fletcher, J., dissenting) (In some circumstances, including a blind testator, “the propounder must present strong proof that the testator knew the contents of the will. [Cits.]”) But, to the extent that this precedent imposed a higher burden upon Propounders to present evidence of Thomas's knowledge of the contents of the will, the jury was so instructed, and there was evidence that the will was prepared according to Thomas's wishes, and was read to her before she signed it.

The issues Propounders raised were properly placed before the jury, and it was error for the trial court to grant Caveators' motion for directed verdict.

Judgment reversed.

HINES, Presiding Justice.

All the Justices concur.

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