In Re the Probate of a Paper Alleged to Be the Last Will and Testament of Booth

27 N.E. 826, 127 N.Y. 109, 38 N.Y. St. Rep. 72, 1891 N.Y. LEXIS 1761

• Court: New York Court of Appeals
• Decided: June 2, 1891
• Status: Published

Opinion

Follett, Ch. J.

At common law, if a person wrote his name in the body of a will or contract with intent to execute it in that manner, the signature so written was as valid as though subscribed at the end of the instrument. (Merritt v. Clason, 12 John. 102; S. C., sub nom. Clason v. Bailey, 14 id. 484; People v. Murray, 5 Hill, 468 ; Caton v. Caton, 2 H. L. 127; 2 Kent’s Com. 511; 1 Dart’s V. P. [6th ed.] 270 ; 1 Jar. Wills [Big.’s ed.] 79.)

We shall assume, without deciding, that under the laws of 27ew Jersey a will may be legally executed if the name of the testator is written by him in the body of the instrument with intent to so execute it. The statute of that state which prescribes the mode in which wills shall be executed, provides: “ All wills and testaments * * * shall be in writing and shall be signed by the testator, which signature shall be made by the testator, or the making thereof acknowledged by him, and such writing declared to be his last will in the presence of two witnesses present at the same time, who shall subscribe their names thereto as witnesses in the presence of the testator.” Under this statute it was held In re McElwaine (18 N. J. Eq. 499), that “four things are required: First, that the will ¡¡ball be in writing. Secondly, that it shall be signed by the testator. Thirdly, that such signature shall be made by the testator, or the making thereof acknowledged by him in the presence of two witnesses. Fourthly, that it shall be declared to be his last will in the presence of these witnesses. Each and every one of these requisites must exist. They are not in the alternative. The third requisite contains an alternative, but one of these alternatives must exist.. The second requisite, the signing by the testator, must exist. The second alternative of the third, to wit, that he acknowledged ‘ making of the signature,’ will not supply the want of the second. Where there is no proof as to the making of the signature, such acknowledgment is sufficient evidence that he made it, and would prove compliance with the requisite of signing by him. But when it is clear that the testator did not sign the will, this acknowledgment is not sufficient. The words of the act are clear, and the object is equally clear, and requires this construction to the words.” This language was used in respect to a will to which the name of the testatrix was subscribed by one of the subscribing witnesses at her request, in her presence and in the presence of both subscribing witnesses. After this was done the testatrix said, “ that was her name and seal,” but did not acknowledge it to be her signature, nor did she then declare that the instrument was her will; and it was held not to have been executed in accordance with the statute.

Wherever the name of a testator appears, whether in the body or at the end of a will, it must have been written with intent to execute it, otherwise it is without force. When a testator, or the maker of a contract, subscribes it at the end and in the manner in which legal instruments are usually authenticated, a presumption arises that the signature was affixed for the purpose of creating a valid instrument. But when the name is written near the beginning of the document, where, as a rule, names are inserted by way of description of the person who is to execute it, and rarely as signatures, it must, before it can be held to have been inserted for the purpose of validating the instrument, be proved to have been written with that intent.

The record contains no evidence tending to show that Mrs. Booth, directly or indirectly, by word or gesture, referred to her name in the first line of the paper as her signature, nor is there evidence of any act on her part from which it might be inferred that the name there written was intended to be in execution of a completed will, and her simple declaration to Mamie Clifford, one of the subscribing witnesses: “ This is my will; take it and sign it,” standing alone, is insufficient to sustain a finding or verdict, that the name “ Cecilia L. Booth,” written by her in the first line of the document, was there Avritten with intent that it should have effect as her signature in final execution of a will.

We-are referred by the learned counsel for the appellant to In re Higgins (94 N. Y. 554) ; In re Phillips (98 id. 267) ; In re Hunt (110 id. 278), in which it was held that when a testator subscribes a will at the end and exhibits it and the signature to the subscribing Avitnesses, declares it to be his last will and testament and requests them to sign it as Avitnesses it is a sufficient acknowledgment of the signature. Those cases are quite different from the one at bar, in this: The signatures having been subscribed at the end, in- the usual way in which instruments are finally authenticated, the legal presumption arose that the signatures were written for the purpose of finally executing the documents, but as we have before shown, there is no legal presumption arising from the face of this instrument that the name was written as a signature, nor is 'there evidence outside of the paper from which such an inference can be safely drawn. It has been the object of the statutes of the various states prescribing the mode in which wills must be executed, to throw such safeguards around those transactions as will prevent fraud and imposition, and it is wiser to construe these statutes closely, rather than loosely, and so open a door for the jierpetration of the mischiefs which the statutes were designed to prevent.

The judgment and orders appealed from should be affirmed, with costs, payable out of the estate.

All concur.

Judgment affirmed..