Butler v. Moulton

175 N.W. 701, 42 S.D. 410, 1920 S.D. LEXIS 1

• Court: South Dakota Supreme Court
• Decided: January 5, 1920
• Docket: File No. 4604
• Status: Published

Opinions

SMITH, P. J.

Appeal from an order and judgment of the circuit court of Brown county, establishing the validity of the last will and testament of one Prudence E. Ives.

It is conceded that the execution of the will was in every respect legal and valid and in full compliance with the requirements of the statute, except that appellant contends the said will was not signed .“at the end thereof,” as required by section 1006, subd. 1, Civ. Code 1919), which provides that—

“Every will * * * must be subscribed at the end thereof by the testator himself, or some person, in h^s presence and by his direction, must subscribe his name thereto.”

The record discloses the following facts attending the execution of the will. Prudeence L. Ives, the textatrix, was an aged woman living, during the last few weeks of her life, in a comfortable room in the dwelling house situated upon the poor farm in' Brown county. From about November 17, 1917, until January 23, 1918, Dr. George E'. Countryman was her attending physician. On the latter date, while making a professional call, she asked him if he could make a will for her. He said he thought he could. She told h|im there was a pad of small writing paper on the bureau, which he procured. He wrote on this pad as she dictated, sentence after sentence. At the conclusion of her dictation the first sheet of the pad was filled, and was turned over to expose the second sheet, which was then blank. On the fifth ruled line of the sheet the testatrix signed her name. To the left of her signature, and on lines a little below, Dr. 'Countryman and Mrs. Charles Osborne signed as witnesses. Immediately thereafter Dr. Countryman detached the first sheet, and, with paste or mucilage furnished by Mrs. Ives, pasted the first sheet on to the top of the second sheet, so as to bring the signature of the testatrix just below the lower edge of the first sheet, and immediately below the last disposing clause of the will. When thus completed Dr. Countryman handed the will to Mrs. lire's, who took it, folded it up, and put it in her handbag, which was under her pillow. These are the Only facts in the record which we deem' pertinent to the specific •question presented upon this appeal. Appellant’s contention is that — •

“We must not take the will as we find it introduced in evidence in this case, but we must consider the manner in which this signature was attached to the will as disclosed by the -undisputed evidence.”

Appellant’s counsel, therefore, seem to concede that the' will, as introduced in. evidence, on its face disclosed a compliance with the statute requiring that the testator and witnesses subscribe the will “at the end thereof.’ Appellant therefore concedes, as we think he -must, that the signing, of the will in the identical manner in which it appeared, if done after the two sheets of paper had been pasted together, would be a strict compliance with the statute. 'His contention then is reduced to the single proposition that the pasting together of the two sheets after the testatrix and the subscribing witnesses had signed their names thereto would invalidate the will under the statute. We cannot concur in this view. Had the two sheets been pasted together before the testatrix and witnesses affixed their signatures, it would hardly be contended that such signatures were not subscribed “at the end thereof.” Had the testatrix written her name on the separate sheet, asked witnesses to add .their signatures thereto, and herself had pasted the two sheets together so that all the signatures -appeared at the end of the will, the effect would not be different. The statute does not require that the testator’s signature shall be affixed at any particular moment during the time occupied in the execution of the will, nor does it require that a will shall be written ón a single sheet of paper. In the case at bar the execution of the will constituted a single transaction, which was concluded when the will in its completed form- was handed to the testatrix and by-her folded and placed in a suitable receptacle.

We hold that this- will was subscribed at the end thereof, in strict compliance with the statute. We have no intention to recede from the rule laid down in Re Taylor’s Estate, 39 S. D. 608, 165 N. W. 1079, as to statutory requirements in the execution of wills. A review of the numerous authorities cited by counsel would serve no useful purpose.

The order and judgment of the trial court are affirmed.