Hess's Appeal

Supreme Court of Pennsylvania

Hess's Appeal

43 Pa. 73, 1862 Pa. LEXIS 132

CourtSupreme Court of Pennsylvania

DecidedMay 29, 1862

StatusPublished

Cited by4 cases

This text of 43 Pa. 73 (Hess's Appeal) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hess's Appeal, 43 Pa. 73, 1862 Pa. LEXIS 132 (Pa. 1862).

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Opinion

The opinion of the court was delivered, by

Lowrie, C. J.

This will is in writing, and signed by the testator at the end thereof, and proved by two .witnesses, and therefore it has all the statutory requisites of validity. But the survivor, who was not one of the subscribing witnesses, testified that he did not read over the will to the testator after he had written it, and that'he wrote it according to the dictation of the testator and in his presence. The defect alleged is, therefore, that one of the usual forms, not enjoined by the statute, the reading of the will, was omitted. Does this render the execution nugatory ? The opinion of the learned judge below fully proves that it does not. We should have to add a new provision to the statute to affirm that it does. It is only because wills are less common in fact and in substance than other writings, that we are more exacting in relation to the formality of reading before signing. But when the very witness who proves the omission proves also the authenticity of the writing, as the very will of the testator, ascertained and written from his own dictation freely made, then what have we to doubt about ? When the testator trusts his scrivener, why should we distrust him, when there is no word or act that impeaches his honesty ? The decision below was, that where a will, written in the presence of the testator, and according to his dictation, is executed in accordance with the statutes, it is valid, though not read to or by him ; and the cases cited by the learned judge show that the decision is right.

Appeal dismissed at the cost of the appellants.

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The opinion of the court was delivered, by

Lowrie, C. J.

This will is in writing, and signed by the testator at the end thereof, and proved by two .witnesses, and therefore it has all the statutory requisites of validity. But the survivor, who was not one of the subscribing witnesses, testified that he did not read over the will to the testator after he had written it, and that'he wrote it according to the dictation of the testator and in his presence. The defect alleged is, therefore, that one of the usual forms, not enjoined by the statute, the reading of the will, was omitted. Does this render the execution nugatory ? The opinion of the learned judge below fully proves that it does not. We should have to add a new provision to the statute to affirm that it does. It is only because wills are less common in fact and in substance than other writings, that we are more exacting in relation to the formality of reading before signing. But when the very witness who proves the omission proves also the authenticity of the writing, as the very will of the testator, ascertained and written from his own dictation freely made, then what have we to doubt about ? When the testator trusts his scrivener, why should we distrust him, when there is no word or act that impeaches his honesty ? The decision below was, that where a will, written in the presence of the testator, and according to his dictation, is executed in accordance with the statutes, it is valid, though not read to or by him ; and the cases cited by the learned judge show that the decision is right.

Appeal dismissed at the cost of the appellants.

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Bluebook (online)

43 Pa. 73, 1862 Pa. LEXIS 132, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hesss-appeal-pa-1862.

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