a prima facie case, that would authorize the jury to find in his favor, if nothing further appeared. But if the defendant introduces evidence tending to disprove the prima facie case thus made, all the evidence should be considered by the jury in finally determining where the preponderance. lies, the burden being upon the person who alleged the fact of the signature, in the sense that such allegation must be supported by the preponderance of the evidence in order for the party making it to have a verdict in his favor. This being so, it was misleading to charge, on an issue of whether the alleged testatrix signed the instrument propounded as her will, that the caveator carried the burden of establishing his contention "to the satisfaction" of the jury, although previously the court had charged that at the outset the propounders must show that the alleged testatrix signed the instrument in the presence of the three witnesses whose names appear thereon, and that they signed in her presence. There was a sharp conflict in the evidence, and we cannot say that this error was harmless. 2, 3. The rulings announced in the second and third headnotes do not require discussion. 4. The defendants in error filed a cross-bill of exceptions, assigning error upon the admission of certain evidence. One of the 131 witnesses whose name appeared to be signed to the will was J. A. Stover. The evidence showed that he was dead, and the propounders introduced testimony to prove his handwriting. The caveator introduced counter-testimony for the purpose of proving that the purported signature of Stover was not genuine. On this question there was much conflict in the evidence. The caveator offered evidence of the son of Stover that he had several conversations with his father, occurring after the death of the testatrix, in which his father said that it seemed very strange that Mrs. Spencer did not make a will, and asked the son if he had heard Mrs. Spencer say anything about a will. He also offered a letter written by J. A. Stover to Spencer, the husband and sole heir of testatrix, whose administrator was the caveator, in which Stover stated that if Spencer wished. to sell his farm and would make a price and terms with regard to it, and the writer could afford to pay for the home for himself and family, he would consider the proposition. The will was dated in 1891, and Mrs. Spencer died in 1892. The letter was written in 1905. The proceedings to probate the will were not begun until 1907. Evidence was introduced tending to show that the farm referred to in the letter was land covered by the will. Under the terms of the will a life estate only was left to Spencer, with remainder over to the propounders. This evidence was admitted over objection upon the part of the propounders. The objections may be reduced to two substantial points: (1) Was the evidence inadmissible as hearsay? (2) Was it inadmissible on the ground that the attesting witness being dead he could not be asked touching conflicting statements, and therefore could not be impeached by their introduction? We do not think either reason sufficient ground for excluding the evidence. In several earlier English cases evidence of this character was admitted, but in Stobart v. Dryden, 1 Mees. & W. 116, which was decided in 1836, declarations of a deceased attesting witness to a mortgage deed whose handwriting had been proved were offered as amounting to an acknowledgment of forgery, and were rejected by the court of exchequer. Parke, B., declared that the evidence of the handwriting in the attestation was not used as a declaration of the witness, but to show the fact that he put his name in that place and manner in which in the ordinary course of business he would have done if he had seen the deed executed. This case stood for some 132 time as a leading case, and has been referred to approvingly by some eminent text-writers: 1 Greenleaf on Evidence, 15th ed., sec. 226; 1 Redfield on Wills, 4th ed., *270. In the United States a doctrine different from that asserted in the Stobart case was early announced. In 1819 it was said by Kirkpatrick, C. J., in the case of Newbold's Exrs. v. Lamb, 5 N. J. L. 499: "The only reason why proof of the handwriting of a witness is taken as sufficient proof of the execution of a deed is founded upon the presumption that what an honest man has attested under his hand is true': See, also, Crouse v. Miller, 10 Serg. & R. 155; Clark v. Boyd, 2 Ohio, 56; Losee v. Losee, 2 Hill (N. Y.), 609; Kirk v. Carr, 54 Pa. 285; Boyeus' Will, 23 Iowa, 354; Egbert v. Egbert, 78 Pa. 326; Neely v. Neely, 17 Pa. 227; Reformed Dutch Church v. Ten Eyck, 25 N. J. L. 40; M'Elwee v. Sutton, 2 Bail. (S. C.) 128; Colvin v. Warford, 20 Md. 357. In Runyan v. Price, 15 Ohio St. 1, 86 Am. Dec. 459, and Baxter v. Abbott, 7 Gray, 71, some of the reasoning apparently conflicts with the authorities above recited; but in the Ohio case, on the trial of an appeal from the probate of a will, the testimony of a subscribing witness taken on the original. probate was read in evidence under a statute of that state, the witness being dead. Evidence was offered to show declarations of the witness respecting the capacity of the testator, for the purpose of impeaching his testimony. It was held that before such statements could be given in evidence the witness must be interrogated as to them, and the fact that he died after giving his original testimony, and that thus the opportunity for such examination had been cut off, did not form an exception to the general rule. In the Massachusetts case it was said that no inference as to the opinion of an attesting witness to a will could be drawn from the mere fact of his signing it, and that therefore evidence of a contradictory opinion expressed by him was inadmissible. The subject is considered at some length in 2 Wigmore on Evidence, sections 1505-1514. 133 In Deupree v. Deupree, 45 Ga. 415, it was held that if the testamentary paper be proved by the witnesses to have been subscribed by the testator in their presence, and they further state that they signed as witnesses immediately thereafter, but they are unable from want of recollection to state affirmatively whether the testator remained in the room or not whilst they were signing, and seven or eight years have elapsed, there is a presumption of law arising from the attestation that it was duly attested; and that it was error in the court to charge the jury that this presumption did not arise unless the attestation clause recited the presence of the testator during the subscription of the witnesses. In the opinion it was said: "In 2 Redfield on Wills, 35, it is said that even where there is no attestation clause, or it is defective, there still remains the presumption that all which appears upon the paper occurred in the order stated, and as the law requires it shall be done." The proof of attestation, therefore, carries with it something more than the mere fact that the witness signed the paper. If the witnesses are placed on the stand, they can be cross-examined and can be asked if they have not made statements conflicting with other testimony as given. If one or more of them is dead, and evidence is introduced to prove his signature, the purpose and effect is not solely to prove that such witness or witnesses signed the paper, but from that fact to derive inferences largely dependent upon the presumption that when they purported to sign properly they did so. When this added effect is to be used, it cannot be counteracted, it not being possible to cross-examine such attesting witness or to lay the foundation for impeachment. If proof of the handwriting of the attesting witness is to carry with it the force of an assertion by him that the instrument was executed because he witnessed it, this implied assertion should be impeachable by showing that he had made statements conflicting with it. The rule as to making a preliminary examination and calling the attention of the witness to conflicting statements before introducing them cannot be applied in such a case. Nor is it like the Ohio case, above cited, where a witness testified and then died, and it was desired to show subsequent statements conflicting with his former testimony. A somewhat similar relaxation as to the requirement of preliminary examination before introducing impeaching conflicting statements was recognized in Battle v. State, 74 Ga. 101. It was there held that where dying declarations were proved, it was admissible to show that after the deceased was wounded he made statements concerning the transaction conflicting with such dying declarations. We recognize the fact that there may be some danger arising from the admission of such impeaching testimony, but there is also danger in admitting dying declarations, statements claimed to be 134 part of the res gestae, opinions of witnesses, and proof of the signature of an attesting witness itself as having probative value in lieu of the introduction of the witness. But the danger of abuse arising from the admissibility of the evidence cannot destroy such admissibility or outweigh the counter-danger arising from admitting mere proof of the handwriting of a witness to have evidential value of the execution of a will without the introduction of the witness, and at the same time absolutely shutting off any practical mode of impeaching or destroying such evidential value, thus in effect relaxing the rule requiring the production of the witness in favor of one person without relaxing the rule that the witness, when produced, must be asked about the conflicting statements before proving them. Judgment reversed on main bill of exceptions and affirmed on cross-bill. All the justices concur. EVANS, P. J., and HOLDEN, J. We concur in the various rulings, except those embraced within the fourth division. of the opinion. On an issue of forgery of a will, we do not think the declarations of an attesting witness, made subsequently to the attestation, are admissible to impeach the factum of attestation. The Burden of Proof Rests upon the Propounders of a Will, in the first instance, to show that it was executed, and the capacity of the testator. A prima facie case must be made out, after which the onus is changed, and the burden of proof is on the caveators to make their grounds of objection good: Credille v. Credille, 123 Ga. 673, 107 Am. St. Rep. 157. See, also, In re Sullivan's Estate, 40 Wash. 202, 111 Am. St. Rep. 895; In re Shapter's Estate, 35 Colo. 578, 117 Am. St. Rep. 216; Fleming v. Morrison, 187 Mass. 120, 105 Am. St. Rep. 386. Subscribing Witnesses to Wills, Their Competency, and the Effect of their evidence supporting or opposing the will, are considered in the note to Stevens v. Leonard, 77 Am. St. Rep. 459. The Attestation and Witnessing of Wills is the subject of a note to Lane v. Lane, 114 Am. St. Rep. 209. TOLBERT v. LONG. [134 Ga. 292, 67 S. E. 826.] ELECTIONS Jurisdiction of Equity to Intervene by Injunction.-Equity will entertain jurisdiction of a petition by a citizen and taxpayer to enjoin against the declaration of the result of an election held under a special act establishing a board of commissioners for a named county, defining their duties, etc., which act provides that it shall not become operative in the county unless ratified by a vote of the people, where it is charged that the whole act is unconstitutional or infected with other illegality frustrating the legislative plan of ratification. (p. 224.) ELECTIONS-Second Injunction Against Same Act.-Where an injunction against the calling of an election has been denied, an amendment or second petition to enjoin the declaration of the result of the election does not seek to restrain the same act, and may be granted. (By the editor.) (p. 225.) INJUNCTION-Second Application to Enjoin Same Act.—Under the facts of this case, the amendment and the second petition did not amount to a second application for injunction to restrain the performance of the same act. (p. 225.) ELECTIONS-Referendum-Qualified Voters.-The act approved August 16, 1909 (Acts 1909, p. 425), providing for the creation of a board of commissioners for Madison county, defining their duties, etc., and which further provided that the act should not go into effect until ratified by the people of the county, clearly discloses the legislative plan to be that all persons voting at such election should be constitutionally qualified voters; and as the designation of such voters in the twenty-first section of the act totally disregarded the added suffrage qualifications prescribed by the constitutional amendment of 1908, the legislative plan of referendum to the constitutionally qualified voters was defeated. (p. 226.) REVIEW ON APPEAL.-For the reason given above, it be comes unnecessary to decide the other constitutional objections raised against the act. (p. 227.) (Syllabi by the court except when stated to be by the editor.) John J. Strickland, John E. Gordon and George C. Thomas, for the plaintiffs. Cobb & Erwin and Henry C. Tuck, for the defendant. 293 EVANS, P. J. On August 16, 1909 (Acts 1909, p. 425), an act was approved, creating a board of county commissioners for the county of Madison, and providing that the same should not go into effect until ratified by the people of the county. H. H. Tolbert, who held the office of county commissioner under a prior act (Acts 1906, p. 441), in his capacity as holder of that office, as well as a citizen and taxpayer of the county, applied for an injunction to restrain A. H. Long, ordinary, from calling the election provided for in the act. The injunction was refused, and Tolbert excepted. The bill of exceptions of Tolbert was dismissed by the supreme court, because it appeared that no supersedeas had been granted, and the election had been |