Webb, 297 Ga. 405, 774 S.E.2d 641 (2015). 53-5-21 Former statute unconstitutional. — See McKnight v. Boggs, 253 Ga. 537, 322 S.E.2d 283 (1984) (decided under former Code 1933, § 113-602). Statute prescribes certain essential prerequisites before a valid judgment probating a will in solemn form can be rendered. Miller v. Miller, 104 Ga. App. 224, 121 S.E.2d 340 (1961) (decided under former Code 1933, § 113-602). Application to probate in solemn form affords opportunity to all parties interested for a hearing by the court on any objection the parties may have to the probate of the will, and those with notice are concluded by the judgment of probate. While the caveator has the burden of proving the grounds of the caveat, the initial burden is upon the propounder to prove the testamentary capacity of the testator, and that the testator acted freely and voluntarily in the execution of the will. Jones v. Dean, 188 Ga. 319, 3 S.E.2d 894 (1939) (decided under former Code 1933, § 113-602). Proper attestation clause presumes statutory execution of will. — Attestation clause stating that testator signed will ‘‘in the presence of witnesses who, at her request and in her presence and in the presence of each other, have hereunto subscribed our names as witnesses the same day and date,’’ is a sufficient attestation clause such that its introduction into evidence raised a presumption of the proper execution of the will. Thornton v. Hulme, 218 Ga. 480, 128 S.E.2d 744 (1962) (decided under former Code 1933, § 113-602). Judgment of probate and domicile is a judgment in rem and therefore, as an act of the sovereign power, its effect cannot be disputed within the jurisdiction. Riley v. New York Trust Co., 315 U.S. 343, 62 S. Ct. 608, 86 L. Ed. 885 (1942) (decided under former Code 1933, § 113-602). Probate of later will requires prior reversal of judgment ordering probate of first will. When a person who filed a caveat to a will which was probated in solemn form thereafter attempted to probate an alleged later will, without setting aside or reversing the judgment ordering the probate of the first will in solemn form, a verdict was demanded against 484 probate of the alleged later will. Byrd v. Riggs, 209 Ga. 930, 76 S.E.2d 774 (1953), for comment, see 16 Ga. B.J. 338 (1954); 18 Ga. B.J. 211 (1955) (decided under former Code 1933, § 113-602). Proof generally. — Proof of the execution of a will in case of probate in solemn form and proof of the execution of a will in a case to establish and probate a copy when the will is missing may be made in precisely the same manner and by the same character of evidence; and in both evidence other than the testimony of the subscribing witnesses, after the available witnesses have been produced at the hearing, is admissible for the purpose of proving the execution of the will, and in each this may be done despite the testimony of the witnesses against the will. Fletcher v. Gillespie, 201 Ga. 377, 40 S.E.2d 45 (1946) (decided under former Code 1933, § 113-602). Proof may be made in any legal form. — Law directs that on an application to probate in solemn form the proof be made by the witnesses, yet such proof may be made by any legal evidence, and is not limited to the testimony of the subscribing witnesses, and despite the fact that the witnesses may testify against the will. Fletcher v. Gillespie, 201 Ga. 377, 40 S.E.2d 45 (1946) (decided under former Code 1933, § 113-602). Propounder must make prima facie case as to factum of will. — On the trial of an issue arising upon the propounding of a will and a caveat thereto, the burden, in the first instance, is on the propounder to make out a prima facie case by showing the factum of the will, and that at the time of the will’s execution the testator apparently had sufficient mental capacity to make the will, and, in making the will, acted freely and voluntarily. Spivey v. Spivey, 202 Ga. 644, 44 S.E.2d 224 (1947) (decided under former Code 1933, § 113-602). On the trial of an issue arising upon the propounding of a will and a caveat thereto, the burden, in the first instance, is on the propounder to make out a prima facie case, by showing the factum of the will, and that at the time of the will’s execution the testator apparently had sufficient mental capacity to make the will, 53-5-21 and, in making it, acted freely and voluntarily. Ehlers v. Rheinberger, 204 Ga. 226, 49 S.E.2d 535 (1948) (decided under former Code 1933, § 113-602). Propounder, upon offering will for probate, shall produce to the court the witnesses to the will’s execution, to prove the factum of the will, that it was freely and voluntarily made, and also apparent testamentary capacity. Johnson v. Sullivan, 247 Ga. 663, 278 S.E.2d 640 (1981) (decided under former Code 1933, § 113-602). Personal appearance by all available witnesses not required. — Propounder of a will is required only to prove the will in accordance with O.C.G.A. Ch. 11, T. 9, which does not, of necessity, require personal appearance by all available witnesses in solemn form proceeding. Norton v. Georgia R.R. Bank & Trust, 248 Ga. 847, 285 S.E.2d 910 (1982), aff ’d, 253 Ga. 596, 322 S.E.2d 870 (1984) (decided under former O.C.G.A. § 53-3-13). Prima-facie case of will’s authenticity made. — When the record of the superior court proceedings shows that the record of the probate court, where the will was shown to be executed with requisite formalities, was brought up and introduced into evidence, this probate record included a photostatic copy of the original will, which original was retained by the clerk of the probate court as required by former O.C.G.A. § 53-3-5, and according to the two attesting witnesses to the will, the testator apparently had sufficient mental capacity to make the testator’s will and in making the will acted freely and voluntarily in 1972, the propounder made out a prima facie case, showing the factum of the will and that the will was freely and voluntarily executed. Pendley v. Pendley, 251 Ga. 30, 302 S.E.2d 554 (1983) (decided under former O.C.G.A. § 53-3-13). Summary judgment sustained. — Undisputed testimony of witnesses admitted in probate court will sustain superior court’s grant of summary judgment admitting the will to probate. Norton v. Georgia R.R. Bank & Trust, 248 Ga. 847, 285 S.E.2d 910 (1982), aff ’d, 253 Ga. 596, 322 S.E.2d 870 (1984) (decided under former O.C.G.A. § 53-3-13). 485 53-5-21 WILLS, TRUSTS, AND ESTATES Production of witnesses indispensable to prima facie case by propounder. — Probate in solemn form requires that ‘‘all the witnesses’’ be produced, if the witnesses be in life and within the jurisdiction of the court; if a will has four witnesses, all must be produced if the witnesses are accessible. Bloodworth v. McCook, 193 Ga. 53, 17 S.E.2d 73 (1941) (decided under former Code 1933, § 113-602); Miller v. Miller, 104 Ga. App. 224, 121 S.E.2d 340 (1961) (decided under former Code 1933, § 113-602). To make out a prima facie case, where a caveat has been filed and to be entitled to a judgment of probate in solemn form, the propounder must introduce at the hearing all the subscribing witnesses, if living and accessible, or proof of their signatures, if dead or inaccessible. Spivey v. Spivey, 202 Ga. 644, 44 S.E.2d 224 (1947) (decided under former Code 1933, § 113-602). If a caveat has been filed all subscribing witnesses must be introduced for examination, even though the propounder knows that the witnesses’ testimony will be unfavorable to the propounder, and if some or all of the subscribing witnesses cannot testify as to the testamentary capacity and mental condition of the testator, or give testimony adverse to the propounder and favorable to the caveator, such failure of memory or hostility will not necessarily defeat the will, since the propounder may make the proof required by law by other witnesses who can testify as to the essential facts, and upon sufficient proof being made the will may be probated. Spivey v. Spivey, 202 Ga. 644, 44 S.E.2d 224 (1947) (decided under former Code 1933, § 113-602). To make out a prima facie case, and to be entitled to a judgment of probate in solemn form, the propounder must introduce at the hearing all the subscribing witnesses, if living and accessible, or proof of their signatures, if dead or inaccessible. Ehlers v. Rheinberger, 204 Ga. 226, 49 S.E.2d 535 (1948) (decided under former Code 1933, § 113-602). To be entitled to a judgment of probate in solemn form, the propounder must introduce at the hearing all the subscribing witnesses, if living and accessible, or proof 53-5-21 of their signatures, if dead or inaccessible. The witnesses must be introduced, for examination, even though the propounder knows that their testimony will be unfavorable to the propounder. Miller v. Miller, 104 Ga. App. 224, 121 S.E.2d 340 (1961) (decided under former Code 1933, § 113-602). Upon the trial of an application to prove a will in solemn form, the witnesses are, all of them, unless accounted for, indispensably necessary witnesses. Miller v. Miller, 104 Ga. App. 224, 121 S.E.2d 340 (1961) (decided under former Code 1933, § 113-602). When four persons affixed their signature below the signature of the testator and three were present at the probate proceedings and testified (the fourth was out of the state and her signature was proved by her mother), all four persons were properly accounted for. Thornton v. Hulme, 218 Ga. 480, 128 S.E.2d 744 (1962) (decided under former Code 1933, § 113-602). Probating in solemn form. — Will cannot be probated in solemn form upon the affidavits of the subscribing witnesses to the will. Miller v. Miller, 104 Ga. App. 224, 121 S.E.2d 340 (1961) (decided under former Code 1933, § 113-602). When witness outside jurisdiction of court, proof of signature may substitute for presence. — When a witness is inaccessible at the time of probate in solemn form by reason of being without the jurisdiction of the state, proof of the witness’s signature may be made. Dennis v. McCrary, 237 Ga. 605, 229 S.E.2d 367 (1976) (decided under former Code 1933, § 113-602). Presence of witnesses affords opportunity for cross-examination. — Main reason of the rule for calling all witnesses in a proceeding for probate in solemn form is to give the other party an opportunity of cross-examining the witnesses. Miller v. Miller, 104 Ga. App. 224, 121 S.E.2d 340 (1961) (decided under former Code 1933, § 113-602). Prima facie case by propounder shifts burden of proof to caveator. — When propounder, in will contest, established the factum of the will and codicil and by proof of the attendant circum- 486 stances indicating mental capacity and freedom of will and action, a prima facie case for the validity of the will and codicil was made such as would shift the burden upon the caveator to show that the instruments were invalid by reason of a degree of undue influence exercised upon the testator, such as would deprive the testator of the testator’s own free will and substitute therefor that of the beneficiary. Ehlers v. Rheinberger, 204 Ga. 226, 49 S.E.2d 535 (1948) (decided under former Code 1933, § 113-602). Probate of self-proved will upheld. — Because testimony from the attorney who prepared and witnessed the decedent’s self-proved will, an associate who also witnessed the will’s execution, and the legal secretary who notarized the will 53-5-22 supported a finding that the decedent had the testamentary capacity at the time the will was executed, the trial court did not err in admitting the will to probate. Tuttle v. Ryan, 282 Ga. 652, 653 S.E.2d 50 (2007) (decided under former O.C.G.A. § 53-3-13). Cited in Heath v. Jones, 168 F.2d 460 (5th Cir. 1948); Byrd v. Riggs, 211 Ga. 493, 86 S.E.2d 285 (1955); Banes v. Derricotte, 215 Ga. 892, 114 S.E.2d 12 (1960); Oakley v. Anderson, 235 Ga. 607, 221 S.E.2d 31 (1975); Melton v. Shaw, 237 Ga. 250, 227 S.E.2d 326 (1976); Payne v. Payne, 242 Ga. 694, 251 S.E.2d 283 (1978); Dismuke v. Dismuke, 195 Ga. App. 613, 394 S.E.2d 371 (1990); Harvey v. Sullivan, 272 Ga. 392, 529 S.E.2d 889 (2000).