Skinner v. American Bible Society

65 N.W. 1037, 92 Wis. 209, 1896 Wisc. LEXIS 252

• Court: Wisconsin Supreme Court
• Decided: January 28, 1896
• Status: Published

Opinion

Newmak, J.

That the two instruments, together, may constitute the last will and testament of Mary W. Leonard, it needs that the last, or codicil, dated October 8,1883, shall have been executed with so much of formality as the law prescribes for the execution of a will. In order to execute the instrument as a will, it must be (1) in writing; (2) sighed by the testatrix; (3) attested and subscribed,in the presence' of the testatrix, by.two competent witnesses. R. S. sec. 2282. This instrument was in writing. It is not questioned that it bears the genuine autograph signature of the testatrix, subscribed before the attestation. It was not necessary that she should have affixed her signature in the presence of the witnesses. Cassoday, "Wills, § 114. It was subscribed by two competent witnesses, in the presence of the testatrix. What lacks it of being perfectly executed ? Obviously, nothing, unless it appears that the' subscribing witnesses .failed to attest as well as to subscribe it.

It would be difficult, no doubt, to satisfactorily define that element in the attestation of á will which is not also present in the mere subscription to a will.' No physical act is required in the one which is not also required in the other, and it is not clear what mental act or fact appropriate to the one is absent from the other. And the definitions of the most recent lexicographers do not make it quite perspicuous. The Century Dictionary defines an attesting witness to be “ a person who signs his name to an instrument to prove it, and for the purpose of identifying the maker or makers.” The Standard Dictionary defines atr testation to be “ the subscription by a person of his name to a written instrument to signify that the same was executed in his presence, or that it is correct.” Since it is well settled in this state that it is not necessary to the validity of a will that the witnesses, at the time when they attest it, shall know the nature of the instrument they are attesting (Allen v. Griffin, 69 Wis. 529), it is not clear what, if anything, attestation is intended to add to the mere fact of subscription. However that may be, it is well settled that an instrument in writing, signed by the testator, and subscribed in his presence and at his request, which may be implied from circumstances, by two competent witnesses, is prima facie, and so far as formality of execution goes, a valid will. Anything further, in mere form, is not contemplated, and would be mere supererogation.

The earlier instrument, dated September 21, 1874, was never so executed as to become a will. But it cannot well be doubted that the later instrument, of October 8, 1883, being sufficiently executed to become a will, has so adopted and incorporated into itself the former writing as that it has become a part of the latter instrument. Both are testamentary in character, and both together form a codicil to the last will and testament of Mrs. Leonard. Baker's Appeal, 107 Pa. St. 381; Brown v. Clark, 77 N. Y. 369; Vogel v. Lehritter, 139 N. Y. 223, 235; Cassoday, Wills, §§ 601-605.

By the Court.— The judgment of the circuit court and the order of the county court are reversed, and the cause is remanded to the county court of Milwaukee county, with directions to so modify its former order or judgment as to admit the instrument propounded as a codicil to the last will and testament of Mary W. Leonard to probate and record as a codicil to the- last will and testament of the said testatrix.