Armstrong v. Walton

62 So. 173, 105 Miss. 337

• Court: Mississippi Supreme Court
• Decided: March 15, 1913
• Status: Published

Opinion

Reed, J.,

delivered the opinion of the court.

This appeal was a controversy between the widow of a deceased member of the Masonic Benefit Association, claiming to be his designated beneficiary, and his children by a former marriage, over the proceeds of an insurance certificate. John Armstrong, at the date of his death, May 3, 1911, was a member in good standing of the Masonic Benefit Association. The certificate of insurance, dated May 27, 1905, was made payable to him upon his death, and was for five hundred dollars. The amount of this insurance was afterwards, by properly adopted order of the association, increased to seven hundred dollars. On December 3, 1906, John Armstrong designated his wife, Mary L. Armstrong, appellant herein,' as his beneficiary in the insurance certificate. The instrument by which this designation is made is called a will. It is-claimed that it was not sufficiently executed by John Armstrong, by reason of his signature not being placed on the line at the end thereof. The following is the benefit, certificate and the so-called will:

“No. 4522.

“MaSONIC BENEFIT ASSOCIATION.

(Organized 1880)

Of the M. W. Stringer Grand Lodge

Deum servamus, nostras victims et orphanos sustinebi-mus.

Office of the Treasurer.

“Will pay to Bro. John Armstrong, of Sesostris Lodge No. 14, at Aberdeen, Mississippi, who is a member of the-

MASONIC BENEFIT ASSOCIATION.

“This certificate witnesseth: That the Masonic Benefit Association of the M. W. Stringer Grand Lodge of F. &: A. M., of Mississippi, will pay to John Armstrong, upon his death, five hundred dollars ($500), provided he is in good financial standing with the Masonic Benefit Association and in good standing with his local lodge at the-time of his death.

“Any failure to comply strictly with the laws and regulations of the Masonic Benefit Association, as prescribed by the aforesaid Grand Lodge, causes forfeiture in the-membership represented by this certificate.

“No suit shall be maintained on this claim unless instituted within one year after the member’s death.

“Proof of death must be filed in the M. B. A. within thirty days after the death of member.

“Given under my hand and official seal at Edwards,. Mississippi, this 27th day of May, 1905.

“[Signed] E. E. Peekins,

“[Seal.] Sec’y & Treas.

“I, John Armstrong, of Aberdeen, Miss., age 49 years, being of sound and disposing mind, give and bequeath. the money clue to me by virtue of the certificate upon which this, my last will, is indorsed unto my wife, Mary L. Armstrong.

“In witness whereof, I this the 3rd day of Dec., 1906, sign, publish and declare this instrument as my will, so far as the money is concerned, which is due me after my death from the Masonic Benefit Association. I appoint Mary L. Armstrong as my executor.

“State of Mississippi, Monroe County.

“The said John Armstrong, on the 3rd day of December, 1906, signed the foregoing instrument and published 'and declared the same in our presence and in the presence of each other, as his last will, and we, at his request, and in his presence, and in the presence of each other, on said date, have hereunto written our names as subscribing witnesses thereof.

“[Signed] F. N. B. Ward, W. M.

“B, E. Ward, S. D.”

The form of the certificate and the will is on one page. There is only a line dividing the instruments. From the appearance of the form, it seems that the certificate and the will, when executed, was intended to be considered and read together and as one.

The will contains the statement that it is indorsed upon the certificate. It is shown therein that its only purpose is to dispose of the money to be due to the member on the certificate, from the association, at the time of his death. The form of the certificate indicates that it should be made payable to the member “upon his death . . . provided, he is in good financial standing.” The form excludes the idea that it was meant to have the certificate made payable, upon its original issuance, to some other person than the member. It appears to be the plan of the association that the certificate should be made payable to the member to whom it is issued, and that the member should afterwards designate his beneficiary in the instrument called a will, which follows immediately the certificate and together occupies the face of the sheet which is known as the benefit certificate.

We have carefully examined the rules and regulations of the Masonic Benefit Association. These are called the constitution and by-laws. The only provision we find rel • ative to the issuance of the benefit certificate and the designation of the beneficiary is the form of the policy, and thereunder the form of the instrument, which is stated to be a will. Therefore, with the exception of prescribing a form for the certificate and for the designation of the beneficiary, there is nothing in the rules and regulations of the association to control the manner in which the beneficiary shall be named.

It will be noted that John Armstrong’s name is not written on the line at the end of the instrument which he denominates his will, and in which he gives the proceeds of the benefit certificate to his wife. It is shown by the testimony that he was a colored man, unable to read or write; that he went to F. N. B. Ward, one of the attesting witnesses to the will, and who was the Worshipful Master of the local lodge of the association, and requested him to make out his .will and make it payable to his wife, Mary Lou Armstrong. ■ Thereupon Ward filled out all the blanks in the instrument in the presence of John Armstrong and his son, B. E. Ward, who was Senior Deacon. The two Wards then signed the attestation to the will. F. N. B. Ward wrote down the name of Armstrong in two places, at the beginning of the will, and in the certificate of attestation. This was done because he was requested by Armstrong to fill out his ■will, and that meant the writing of all necessary words to make out and complete the execution of the will. The paper was then handed to Armstrong, who delivered it to his wife; and upon his death it was found in her bedroom, framed and hanging on the wall. F. N. B. Ward testified that he signed John Armstrong’s name to the will.

It appears to be settled that the right of a member of a benefit society in the amount agreed to be paid in the certificate, at his death, is simply-the power to appoint a beneficiary, and that the rules and regulations of such society, such as may be contained in the constitution or charter and by-laws, are the foundation and source of such power. Bacon’s Benefit Societies, vol. 1, sec. 237. But we find no requirement in the rules and regulations of the Masonic Benefit Association, relative to the execution of the power to name the beneficiary, except the form of the will set out in the constitution and used in this case. This formality was intended to be complied with by the member, John Armstrong. We understand that the designation of a beneficiary may be made by will. This seems to be the plan of this association.

Has the instrument purporting to be a will been sufficiently executed 1 It is contended by appellee that it was necessary for the paper to have been signed at the end thereof. The statute of this state (section 5078 of the Code of 1906) provides that a will must be signed by the testator, or some other person in his presence and by his express direction, and if the will is not wholy written and subscribed by the testator, then it shall be attested by two or more credible witnesses in the presence of the testator or the testatrix.

Now, as to the place of signature: We find in 30 Am. & Eng. Ency. of Law (2 Ed.), 582, the following: “Under the English statute of frauds, a will was held to be sufficiently ‘signed’ if the testator wrote his name at the beginning or in the body of the will with intent thus to sign the instrument; and this rule has been followed in those jurisdictions wherein the statute is silent as to the place of signature, with the modification, in some instances, that the intent to sign must appear upon the face of the will.” In 40 Cyc. 1104, is the following: “Where the statute relating to signing requires no more than the statute of frauds — merely that the will shall be in writing, and be signed — it is immaterial where the testator’s signature was placed, if it was placed there with the intention of authenticating the instrument.” It is stated to be the general rule, applicable to the signature to writings of various kinds, that “it is now almost universally held that, if the name of the party to be charged is written by himself or his representative anywhere in the body of the instrument, with intent thereby to authenticate it and render himself bound, it is a good signature.” Lampkin v. State, 105 Ala. 1, 16 South. 575; In re Camp’s Estate, 134 Cal. 233, 66 Pac. 227; Cunningham v. Hawkins, 163 Mich. 317, 128 N. W. 223.

In the case of Armstrong v. Armstrong, 29 Ala. 538, wherein it was held that the writing of the name of the testator at the beginning of the will was sufficient, Rice, C. J., said in delivering the opinion of the court: “It is not essential that the testator should write his own name. The British statute, as well as our own, allows a will to be signed for him by another; and his name, when written by another, for him, in his presence, and by his direction, will have the same effect as if it had been written by himself. Although his name is not written by himself, nor subscribed to the will, yet, if it be written in the beginning of the will, by another, in his presence, and under his direction, and if it be acknowledged by him to the attesting witnesses, at the time he calls on them to attest and subscribe it, it will be as effectual as if with his own pen hq had written it.”

It seems that a distinction has been made between the meaning of the words “sign” and “subscribe.” In the case of M., K. & T. Railroad Company v. Denton, 29 Tex. Civ. App. 284, 68 S. W. 336, the court, in holding a signature in the body of an instrument, called attention to the fact that the statute requiring such signature provided that such instrument should be “signed,” and not that it be “subscribed.” It will be noticed that the statute in Mississippi prescribes that the will shall be signed by the testator, or some other person, at his direction, where it is not wholly written by him, and that, when it is wholly written by him, it shall also be subscribed by him.

We do not find any decision of this court wherein the question of the location of a signature to a will has been passed on. In reference to the location of the signature of the witnesses attesting the will, it has been decided in the case of Fatheree v. Lawrence, 33 Miss. 585, that the purpose of attestation is to identify the instrument signed and published by the testator, and that no particular form of words is necessary to constitute an attestation. In the case of Murray v. Murphy, 39 Miss. 214, it is decided that it is immaterial as to what' particular part of a will is located the name of the attesting witness. It is settled under the laws of this state that a signature to a will may be made for a testator by another party writing his name (Watson v. Pipes, 32 Miss. 451); and a testator may be assisted in signing his will by having his hand steadied by another party, and can also sign by his mark (Sheehan v. Kearney, 82 Miss. 688, 21 South; 41, 35 L. R. A. 102).

We find from the testimony in this case that John Armstrong had the purpose definitely in mind to make his will, so that his wife could be designated as the beneficiary in his insurance certificate. He went to an officer of the local lodge, the person who had full information on the subject, and knew how to write the paper in the proper manner and in conformity with the prescribed form of the association; and he directed that his will be made out, and that the insurance should be given to his wife. The officer wrote out the instrument as directed. In compliance with our statute, it was written in the presence of the testator, and at his express direction. Such express direction followed and was obedient to the request by Armstrong contained in the words, “Fill out my will to my wife. ’ ’

Armstrong could neither read nor write. This was known to Ward, and Ward intended to write every word necessary in the blank form in the will, including the signature of Armstrong. lie knew that this was contained in the request made of him to fill out the will. Armstrong gave him all necessary information to enable him to prepare the paper. It is hardly possible that Armstrong knew the meaning of all the formal words used in making the bequest. It was sufficient for him to know that he was designating his wife as beneficiary in the will. He depended upon the man, the officer of the association, who had superior knowledge and who had special capacity to do what he desired. The will was properly attested by the witnesses when it was then handed back to Armstrong. All the parties, the testator and the witnesses, understood that it was a completed and executed instrument, and it was so afterwards dealt with. Armstrong delivered it to his wife, the beneficiary. She had it in her possession and before her in her room, so that it could be easily seen by 'all. No one afterwards questioned the sufficiency of the execution of the paper. In fact, the record discloses that it was duly proved by the testimony of the subscribing witnesses and admitted to probate in accordance with the provisions of the statute. The execution further complied with the provisions of the statute by the attestation by two witnesses in the presence of the testator.

The Mississippi statute does not state where the signature of a testator to a will shall be located. It does not say that the will shall be signed or subscribed at the end thereof. As the statute is silent'as to the place of signature, and merely provides that the will shall be in writing and signed, we believe the rule that it is immaterial where the signature of the testator should be placed on the instrument should be followed in this state. It seems clear that it was the intent of the testator to make and execute this instrument as his will, for the purpose of designating his wife as the beneficiary in his insurance certificate. We therefore decide that the instrument is sufficiently executed and is a valid will under the law.

We have not entered into any statement or discussion of the pleadings in this case, as we have not deemed it necessary to do so. The Masonic Benefit Association, by an interpleader, admitted its indebtedness under said insurance certificate, in the sum of $700. It is contended by the appellees that the will was not sufficiently executed, and therefore invalid, and that the amount due under the benefit certificate descended to, the heirs at law of John Armstrong, who are the appellant, his widow, and the appellees, his children by former marriage. The chancellor decided this issue in favor of the appellees, holding that the will was not the true and last will of John Armstrong. We conclude that the court erred in doing this.

The case is therefore reversed, and judgment entered here in favor of the appellant, and dismissing the original bill of the appellees.

Reversed.