O'Brien v. Galagher

25 Conn. 229

• Court: Supreme Court of Connecticut
• Decided: September 15, 1856
• Status: Published

Opinion

Waite, C. J.

The question in this case, is whether the will of Galagher was legally executed, the subscribing witnesses having put their names to it before it was signed by the testator.

Several cases have been cited from the ecclesiastical courts in England, in which it was holden that wills so executed were invalid. The reason assigned is, that the instrument does not become a will, until signed by the testator, and therefore putting the names of the witnesses to the instrument, before it is signed by him, is not the attestation of the will which the law requires.

These decisions are of modern date, as those courts have jurisdiction only of wills of personal property, and it is only by recent statutes in that country, as well as in this, that such wills are required to have witnesses; devises of real estate being proved in the common law courts.

We have not been referred to any case in those courts, nor have we been able to find one in which this question has been made. And it is strange that no such case can be found, if the impression of the legal profession was against the validity of a will executed in the manner this was.

So far as the question has been noticed in the American courts, the inclination seems to have been, to consider the order in which the testator and the witnesses put their names to the will as immaterial, provided the instrument is in all other respects legally executed.

We are not entirely satisfied with the decisions of the English ecclesiastical judges, whose opinions are very brief, and apparently given without a very full examination of the question.

The general and regular course undoubtedly is, for the testator, in the first place to sign and execute the will on his part, and then call upon the witnesses to attest the execution, by subscribing their names.

But where as in the present case, witnesses are called to attest the execution of a will, and being informed what the instrument is, subscribe their names thereto as witnesses, and the testator on his part and in their presence duly executes the instrument as his will, and all is done at one and the same time, and for the purpose of perfecting the instrument as a will, we can not say that it is not legally executed merely because the names of the witnesses were subscribed before that of the testator.

We therefore advise the superior court to affirm the decree . of the court of probate establishing the will.

In this opinion, the other judges, Stores and Hinman, concurred.

Decree of probate affirmed.