ON MOTION ROE REHEARING.
Beck, J.The act of 29 Car. c. 3, commonly called the statute of frauds, the fifth section of which made provision in regard to wills, is set out in Cobb’s Dig. 1128, as follows: “All devises and bequests of any lands, or tenements, devisable either by force of the statute of wills, or by this statute, or by force of the custom of Kent, or by the force of the custom of any borough, or any other particular custom, shall be in writing, and signed by the party so devising 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 said devisor by three or four credible witnesses, or else they shall be utterly void, and of none effect.” By the 19th section thereof provision was made in regard to nuncupative wills. By the act of 1852 (Acts 1851-2, p. 104), wills disposing of personalty were required to be executed and proved in the same manner as previously required in regard to devises of real estate. *818Under the language of this statute it was held that the witnesses need not see the testator sign, but that his acknowledgment to each that the instrument was his was sufficient. In 1837, in England, a statute was passed changing the rule thus laid down by the authorities. 1 Vic. c. 26, see. 9. This required that the will should be signed at the foot or end of it by the testator, or by some other person in his presence and by his direction, and that such signature should be made or acknowledged by the testator in the presence of two or more witnesses present at the same time, and that such witnesses should. attest and subscribe the will in the presence of the testator. By this statute it was the signature which was required to be acknowledged, and not the instrument only, as had previously been the rule. Under this statute a different rule. of construction arose. In Dewey v. Dewey, 1 Metcalf, 349 (35 Am. D. 367), the English rule was considered, and it was held, that the will need not b.e signed by the testator in the presence of the attesting witnesses; that it was sufficient that he acknowledged his signature and requested them to act as its witnesses, or that he merely declared to them that the paper was his will. In the opinion it was said: “The signature of the testator is admitted to be a genuine signature, and the certificate of attestation assumes that it had been already signed. The purpose of procuring the attestation- of the witnesses was to give effect to the instrument as a valid will. It can hardly be supposed that the testator, who was by his own active agency procuring the authentication of the instrument by the requisite witnesses, would have omitted the first step necessary to its due execution, viz., the signature by himself.”
In a number of the American States the statutes require that the testator must sign or subscribe the will in the jmesence of the witnesses, or that he may acknowledge his signature or subscription in their presence. Under some of them also the witnesses need not be present at the same time, provided that the testator signs cr acknowledges his signature before each one of them. Under such statutes it is more commonly held that if the witnesses do not see the testator sign or see his signature which has been affixed, or do not have opportunity so to do, the execution of the will is invalid. In some States a will may be upheld although the witnesses neither saw the testator sign nor saw his signature. Dougherty v. Crandall, 168 Mich. 381 (134 N. W. 24, 38 L. R. A. (N. S.) 161, and note, Ann. Cas. 1913B, 1300).
*819The common-law rule appears to have been recognized in this State prior to the adoption of the original code. Beall v. Mann, 5 Ga. 456. It was there said: “In the case of Gryle vs. Gryle, 1 Ves. Jr. 11, Lord Hardwick doubted whether it was a sufficient execution, and publication of a will, for - the testator to say before the witnesses, 'this is my will,’ without some further act on his part. But those douhts have long since vanished, and modern adjudications have gone to the extent of deciding that a will is duly executed and published, though the witnesses neither saw the testator’s signature, nor were made acquainted with the instrument they attested, provided they were requested by the testator to subscribe the memorandum of attestation. British Museum vs. White, 3 M. and Pay. 689. S. C. 6 Bingh. 310. Wright vs. Wright, 5 M. and P. 316. S. C. 7 Bingh. 457. Johnson vs. Johnson, 1 Cromp. and Mees. 140.”
As originally codified (Code of 1863, § 2383) . the law in regard to the execution of wills was declared 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 competent witnesses.” Section 2387 read as follows: “In all cases a knowledge of the contents of the paper by the testator is necessary to its validity; but usually where a testator can read and write, his signature, or the acknowledgement of his signature, is sufficient. If, however, the scrivener or his immediate relations are large beneficiaries under the will, greater proof will be necessary to show a knowledge of the contents by the testator.”
The two sections are now included in the Code of 1910 as §§ 3846, 3850: the first, under the caption, “Formalities of Execution;” the second, under the head, “Knowledge of Contents.” In adopting substantially the English statute of frauds on the subject of necessary formalities in the execution of wills, we will follow the construction placed by the English courts upon that statute prior to our adopting act of 1784. Brown v. Burke, 22 Ga. 574 (3). See also Thornton v. Lane, 11 Ga. 459 (4), 500; Tucker v. Adams, 14 Ga. 548, 569; Thrower v. State, 117 Ga. 753, 757 (45 S. E. 126).
After these provisions had thus been codified, the decision in *820Webb v. Fleming, 30 Ga. 808 (76 Am. D. 675), was rendered. In the opinion it was said: “To determine whether or not this verdict is supported by the evidence, the evidence must be applied to the different issues presented by the different grounds of caveat. The first ground is, that the testator did not sign the will in the presence of the witnesses. The evidence is that he did sign in the presence of the witness Martin, and that by his conduct he clearly acknowledged his signature in the presence of each of the other two. And that was sufficient.” From the statement of facts it appears that the following were the acts thus held to be a sufficient acknowledgment in the presence of the other two: “Hutchins [one of the attesting witnesses] approached the bed and said to Sanders [the testator] : ‘Mark, Tom is here to attend to that business.’ Sanders said, ‘Yes, this is my will; it is written as I want it; I want you to witness it.’ He [the attesting witness] then subscribed the paper in the presence of Sanders; Sanders did not sign or say he had signed it in witnesses’ presence.” See also Gillis v. Gillis, 96 Ga. 1 (23 S. E. 107, 30 L. R. A. 143, 51 Am. St. R. 21), and cases there cited. Still later was decided the case of Underwood v. Thurman, 111 Ga. 325 (36 S. E. 788), from which is taken the quotation appearing in the fourth division of the original opinion. See also, in'this connection, Hobart v. Hobart, 154 Ill. 610 (39 N. E. 581, 45 Am. St. R. 151).
From what has been said it will be seen that the English construction of the statute of frauds established a rule as to what was a sufficient acknowledgment of the instrument; that the statute of frauds in regard to the formalities of execution of the will was the law of Georgia prior to the adoption of the code in this State; that it was adopted in the code with no substantial change except as to the inclusion of a will of personal property on the same basis as a devise of realty, and as to the mentioning of the execution of nuncupative wills, for which provision was elsewhere made. It will further be seen that there is nothing in the decisions of this State adopting a different ruling since the code took effect, but that the same line of reasoning has been pursued consistently. The only place where reference is made to the acknowledgment of the signature is in section 3850 of the Code of 1910, which deals with knowledge of the contents of the will by the testator, and declares that where Fe “can read and write, his signature, or the acknowl*821edgment of his signature, is sufficient.” This section was not dealing with the question of the necessary formality of execution-of the will, but with the question of what would be sufficient to imply knowledge of thé contents of the instrument on the part of the person executing it. And we can not import from a section of the code, not taken from a statute but codified from the general law and dealing with the knowledge of the contents of the instrument, the words “acknowledgment of his signature,” and insert them into another section dealing with the necessary formalities of the execution or treat them as modifying the last-mentioned section, so as to change the established rule of construction on the subject of such necessary formalities.
There was some evidence for the consideration of the jury, tending to show that the signature appended to the instrument when offered for probate was the genuine signature of the testator. From the discussion above it will be seen that the rule adopted in this State is to the effect that the acknowledgment by the testator in the presence of the attesting witnesses that the instrument is his will carries an implication that he has signed it, and that the signatures of the attesting witnesses, with an attesting clause reciting that the paper was signed and sealed by the testator and attested by them, carries the probative force that the will has been regularly executed. If in fact the instrument had not been signed by the testator or by some other person in his presence and by his express, direction before it was attested by the witnesses, it would not be a will, because a testamentary paper does not become a will until it is signed, and the witnessing of an unsigned paper would not suffice. But while this is true, we are of the opinion that under the evidence, and especially in view of the facts above mentioned, the question was for the jury.whether the signature of the paper appended thereto at the time it was offered for probate was that of the purported testator, and, if so, whether in fact it was upon the paper at the time when the attestation was made or not; and we can not declare that there was no evidence which would authorize the jury to find in favor of the probate of the will. Rehearing denied.
Atkinson and Hill, JJ., dissenting. The burden was upon the propounder to prove the factum of the will. Slaughter v. Heath, 127 Ga. 747 (57 S. E. 69, 27 L. R. A. (N. S.) 1). Factum *822of the will involved, among other things, signature by the maker, or by some other person in his presence and by his express direction, before the instrument was signed by the attesting witnesses. Civil Code, § 3846. Under former decisions of this court, if the testator signed the paper out of the presence of the attesting witnesses and afterwards acknowledged to them that he signed it and requested them to attest it as his will, such acknowledgment would be a sufficient substitute for actual signing by the testator in the presence of the witnesses. It appears from the evidence set out in the statement of facts that the attesting clause did not recite that the paper was signed by the maker in the presence of the witnesses at or before the time they signed it, or that he acknowledged having signed it to them. It affirmatively appears that none of the subscribing witnesses were absent, but that all were present at the trial and testified. According to the testimony of each of them the maker did not sign the paper in their presence, nor did they see the maker’s name signed to the paper at the time they signed it, nor did they testify to any loss of memory on that subject. They all declined to testify that the maker’s name was or was not signed to the paper; each stated that he did not know. The caveatrix testified that she saw the paper after it.was signed by the witnesses, and that when so seen by her it was not signed by the maker. When the above is considered, the evidence in its entirety was insufficient to establish the factum of the will; and being so, the charge on which error was assigned was unauthorized, and the verdict was unsupported by the evidence.