concurring in part and dissenting in part.
I respectfully dissent to the majority’s opinion. “It is the duty of this court to construe the evidence most strongly in support of a verdict which has been approved by the trial judge.” Associated Mutuals, Inc. v. Pope Lumber Co., 200 Ga. 487 (37 SE2d 393) (1946). In regard to the denial of a motion for directed verdict, the rule is that this Court “must affirm if there is any evidence to support the jury’s verdict, and in making this determination, we must construe the evidence in the light most favorable to the prevailing party. [Cit.]” Rabun County v. Mountain Creek Estates, 280 Ga. 855, 858 (2) (632 SE2d 140) (2006). Accord Holland v. Holland, 277 Ga. 792 (596 SE2d 123) (2004). In cases challenging whether the attestation of a will occurred within the presence of the testator, the courts must bear in mind that “[a] proper attestation clause to a duly signed and attested will raises a presumption that the will was legally executed, [cit.]” and that this presumption can only be rebutted by “clear proof to the contrary.” Newton v. Palmour, 245 Ga. 603, 605 (266 SE2d 208) (1980).
Despite these well-established rules, the majority refuses to acknowledge that the presumption that the testator’s will was legally executed was not rebutted because the testimony of the testator’s daughter, Jeffers, constitutes some evidence to support the jury’s verdict. The majority focuses on the fact that the attesting witnesses, Ayers and Goldman, failed to see the testator as they signed the will. The jury, however, was entitled to rely on Jeffers’ testimony about what she observed when the pertinent events occurred. She testified that although the testator was sitting in a chair in her bedroom when Ayers and Goldman left to sign the will at the dining room table, some 15 feet from the bedroom, the attestation was still in progress when the testator called to Jeffers and Jeffers found her standing in the doorway to the bedroom with her walker. While on cross and recross examination Jeffers testified that the testator could not see what the attesting witnesses were doing at the dining room table from the bedroom doorway, the transcript reveals that on redirect Jeffers apologized for her nervousness and testified that her mother could see into the dining room from the bedroom doorway. The trial court allowed this testimony over defense counsel’s objection that Jeffers had already answered that the testator could not see the table, stating that the jury could “give the testimony such weight and credence as it believes it’s entitled to.”
Although Jeffers’ testimony with regard to the visibility of the attestation of the will and the circumstances thereof “was equivocal and occasionally self-contradictory, the credibility of the parties was for the jury ([Cit.]).” Glisson v. Glisson, 265 Ga. 239 (2) (454 SE2d 508) *270(1995). Because of this evidence, there is no “clear proof to the contrary” to rebut the presumption that the testator’s will was legally executed. See Newton, supra, 245 Ga. at 605, where this Court recognized that a jury could find a will was legally executed despite evidence the testator was bedridden, the subscribing witnesses signed in a hallway outside the bedroom, and the subscribing witness averred that “because of the way the bed was positioned, she did not see how the testat[or] could have seen” the attestation. Id. at 604.
Additionally, a review of cases in Georgia and other foreign jurisdictions that follow the line-of-vision test reveals that the majority’s ruling is erroneously premised on factually distinguishable cases applying the test to “testators who were confined to bed and were physically unable to move when the witnesses signed.” Glenn v. Mann, 234 Ga. 194, 199-200 (2) (214 SE2d 911) (1975). Although citing to Glenn, see Majority Op., p. 266, fn. 3, the majority fails to acknowledge the factual difference Glenn recognized between bedridden, immobile testators and those testators who were physically able to move when the witnesses attested the will. This Court has recognized this distinction nearly as long as it has applied the line-of-vision test itself. See Lamb v. Girtman, 26 Ga. 625 (1859), decided less than a year after Reed v. Roberts, 26 Ga. 294 (1858). In Lamb, a case involving a testator who was not in the same room as the witnesses but had the ability to move about, this Court held it was for the jury to determine whether the witnesses attested the will in the presence of the testator because the testator was mobile and might have been able to witness the signing. Other jurisdictions have adopted similar rules. See In re Fuller’s Will, 189 N.C. 509 (1925) (“[a] will is well attested by subscribing witnesses when, though not in the same room with the testator, they are in such a situation that the testator either sees or has it in his power to see that they are subscribing” (emphasis supplied)); Moore v. Moore, 49 Va. 307 (1851). See also Annotation, What Constitutes the Presence of the Testator in the Witnessing of his Will, 75 ALR2d 318.1 thus cannot agree with the majority that a rule promulgated in cases involving bedridden, immobile testators should be applied in the same manner to cases where the testator is not bedridden or immobile. I find it particularly inapplicable in this case, where the evidence shows that the testator was not only able to physically walk around, she was actually seen having walked within feet of the attesting witnesses at the very time they were signing her will.
I would hold in this case, as the Court did in Glenn, supra, 234 Ga. at 202 (2), that in determining whether a will was signed in the presence of the testator,
*271Decided November 20, 2006. Capers, Dunbar, Sanders & Bruckner, Emory E Sanders, Sr., Ziva P. Bruckner, Amanda N. Medlin, for appellant. Johnston, Wilkin & Williams, William J. Williams, for appellees.“(t)here is no unvarying and universal rule which can be laid down; each case must be determined by its own circumstances. That the will shall be signed in the presence of the testator, was to prevent a fraud’s being perpetrated upon [her] by substituting another for the true will.” Under the circumstances of this case, [appellant’s] contention that [Ayers and Goldman] did not sign in the testator’s presence cannot be sustained.
Accordingly, I dissent to the majority’s reversal of the trial court’s denial of appellant’s motion for directed verdict. In the absence of “clear proof to the contrary,” Newton, supra, 245 Ga. at 605, supra, I would hold that Jeffers’ testimony regarding what the testator could see plus the testator’s presence with her walker in the bedroom doorway, together with the presumption that the will was legally executed, support the trial court’s judgment admitting testator’s will, thereby giving full effect to her intentions regarding the disposition of her property after her death.
I am authorized to state that Justices Carley and Hines join this dissent.