Watson v. Pipes

32 Miss. 451

• Court: Mississippi Supreme Court
• Decided: October 15, 1856
• Status: Published

Opinion

Smith, C. J.,

delivered the opinion of the court.

It appears from the record in this ease, that at the April Term, 1852, of the Court of Probates of Adams county, an instrument in writing, which purported to be the last will and testament of one Anthony Smith, deceased, was produced and admitted to probate by said court.

And that in September, at a subsequent term of the court, the appellants, Watson Heatherington and his wife, Jane, filed therein their petition, alleging for several canses, the invalidity of the will; and praying that an issue devisavit vel non be made up and transmitted for trial by a jury in the Circuit Court. The answers of the parties defendants being filed, an issue was accordingly drawn up and and certified to the Circuit Court of Adams county, in which a trial was had before a jury, who found that the said instrument in writing was “ the true and valid last will and testament of” the deceased. Whereupon the petitioners entered their motion for a new trial, which being overruled they excepted.

When the proceedings of the Circuit Court in regard to the trial of the issue were certified to the Court of Probates, the petitioners again entered a motion for a new trial, assigning as grounds for the motion, First, The verdict was contrary to law and evidence: Second, The court erred in refusing instructions asked for by petitioners, and in granting those requested by the respondents; and Third, because of newly discovered evidence. This motion was refused, and a final decree entered, dismissing the petition; from which this appeal is prosecuted.

It is insisted that the evidence submitted to the jury, on the trial of the issue, was insufficient to sustain their verdict; and hence, that the court erred in overruling the motion for a new trial. This was the only ground relied on in the argument at bar.

In support of this objection it is contended, First, That the alleged will, as shown by the evidence, was not made and published in the mode prescribed by the statute; and Secondly, That the proofs did not establish a due attestation of the will.

The statute concerning last wills and testaments, provides that every person aged twenty-one years, if a male, or aged eighteen, if a female, or upwards, being of sound and disposing mind, and not a married woman, shall have power, at his or her will and pleasure, by last will and testament or codicil in writing, to devise all his or her estate in lands or personal property of every description whatsoever, which he or she hath at the time of his or her death, “ so as such last will and testament be signed by the testator, or by some other person in his or her presence and by his or her express directions; and, moreover, if not wholly written and subscribed by himself or herself, be attested by three or more credible witnesses, in case of the devise of real estate, and one or more credible witnesses in case of the devise of goods and chattels and personal property, in presence of the testator.”

The evidence in reference to the questions discussed by counsel, is substantially as follows :—

The mental and legal capacity of the testator to make a will was clearly proved, and not questioned. William T. Martin, who prepared the will, testified that he was sent for by the deceased, and having arrived at his residence on the 2nd of April, 1852, received from him instructions for drafting the will in question. Witness conversed with the deceased before drafting the will. The deceased was clear and definite in all his instructions. The will was twice read over in the hearing of the deceased, and each clause was discussed by him. Wilson Spring and Hinds Fleming were called in to attest the will, and it was published and signed in the presence of the three witnesses, by the deceased, and they subscribed their names as witnesses thereto, in the presence of the testator, and upon a small table near his bedside. At the time of signature witness put. a pen in the hand of the testator, and on seeing the trembling of his hand and the testator’s saying that he could not write, and supposing him unable to write on account of physical debility, witness at the request of the testator, guided his hand as he wrote his name to the will. When the will was being prepared, witness informed the testator that three witnesses would be necessary: the testator requested witness to send for them, which was accordingly done, and that the subscribing witnesses, Fleming and Bpring, were sent for and requested by witness to come into the testator’s room and attest the will, upon the request of the testator. When the witnesses were all present, the testator with the assistance of witness, signed the will and requested that the same be attested as his will by the witnesses present, which they did in the presence of the testator and of each other. Witness held the will upon a book, where the testator could read and see it, put a pen in his hand which testator held, while witness guided his hand and kept it c steady, until with witness’s assistance, he signed the paper. The will was then attested by witness and the other subscribing witnesses, as the will of the testator, on a table near the bed. When the will was signed the testator lay upon his back with his hands slightly inclined to the right, and propped up by pillows. The will was not read to testator in the presence of Fleming and Spi'ing, but testator was asked by witness, in their presence, if it was his will. Testator did not speak of the signature thereto after it was made. Testator requested witness to sign his name to the will. The testator was illiterate, but the witness did not know whether he could read or write or sign his name. The testator was blind in the right eye.

Hinds Fleming testified that the testator signed “the will in issue” as his last will and testament, on the day of its date, in the presence of Wm. T. Martin, W. Gr. Spring, and witness. Witness, the said Martin, and Spring, at the same time, in the presence of the testator, and of each other, subscribed the paper as witnesses to the same, as the will of the testator. Witness was at the house of the testator, in company with his father and Spring, on the day the will was made. Martin first requested the two last to go into the testator’s room to witness the will, when the father of witness excused himself on account of lameness; and at his suggestion witness was requested to go. When the witnesses were in testator’s room, “ Martin took the paper and told them it was Mr. Smith’s will,” who then signed it with Mr. Martin’s assistance, who guided his hand. Witness did not hear the will read, and did not hear the testator acknowledge the paper to be his will after it was signed. Martin asked the testator if he was satisfied, to which he replied “yes.” Witness did not hear the testator acknowledge the signature as his. The paper was attested on a table, about four or five feet from the testator’s bed, who was lying on his back when the witness attested the will.

Spring, the third attesting witness, testified that he was at the testator’s house on the second of April, 1852, in company with Hinds Fleming and his father; that Martin came out of the testator’s room and requested witness and the elder Fleming to go into the room of the testator, and witness his will. The latter declined to do so, stating that he was in delicate health, and old, and did not wish to be compelled to attend court to establish the will. Witness and Hinds Fleming, then went in. Martin took the paper in his hand and told the witnesses it was the testator’s will. Witness did not read the will nor hear it read. “Martin put a pen in testator’s right hand as testator lay in bed on his back, but did not see testator sign the paper.” Witness could not see, from where he was standing, the will signed; did not hear the testator acknowledge the signature; nor hear him expressly direct Martin to sign the will for him. After attestation, Martin asked the testator if he was satisfied, to which he answered “ yes.” The will was attested by the subscribing witnesses, on a table four or five feet from the bed of the testator. He was not requested by the testator to witness the will, and did not hear him ask the other witnesses. The testator was blind in one eye; was illiterate, and could neither read nor write. Without changing his position in the bed, and he did not, the testator could not see the act of attestation by the subscribing witnesses, who signed the will, at the same time, immediately after Martin had assisted the testator to sign it. Witness did not hear the testator recognize the signature to be his “after Martin had helped him to sign” the will. Nor did he, either before or after he had attested the will, hear the testator acknowledge it to be his last will and testament. When Martin asked the testator, after the will was attested, if he was satisfied, he answered “yes,” or something to that effect; and that was the only word spoken by the testator, which the witness heard during the transaction.

George Moore testified that he was “ in and out”- of the testator’s room while the will was being drawn. The testator “ was perfectly in his right mind.” Martin asked the testator if he should assist him to write his name? The testator replied “yes.” He did not know whether he could write or not. “The pen was in the testator’s hand, and Martin steadied his hand.” Martin told the testator that it would be necessary to have some persons as witnesses, and they were sent for. Witness heard “ Martin ask the testator, in presence of the witnesses, if these gentlemen should sign the will, as witnesses,” and the testator answered “yes.” The will was attested on a table close by the bed side of the testator. The room in which he lay was a small one. Witness did not notice if the testator looked at the witnesses while they were signing the will. When the will was signed the testator appeared pleased. On the day after the will was made, witness told the testator if "he desired to do so, he could change it. He replied “no,” he had made his will on “ yesterday and was Very well satisfied with it; and that it must remain as it was.”

In consequence of the very earnest and labored argument of counsel for the appellants, we have been induced to extract, at some length, the evidence submitted to the jury on the trial of the issue, and which was subsequently reviewed by the Judge of Probates on the motion for a new trial made in his court.

Upon an examination of that evidence, it appears, in the first place, to be very distinctly shown that the will was written in the presence of the testator, and in conformity with specific instructions which he gave to the party who drew it up. The will having been twice read to him, he was fully acquainted with its contents. That persons were sent for by his direction, to act as attesting witnesses; and who knew when they assembled in the testator’s room, the purpose for which their attendance was required; and that when there assembled, the person who drafted the will, in the presence of the testator, holding it in his' hand, said to the witnesses that it was the testator’s will. The same person’ then put a pen in the testator’s hand, who was entirely illiterate and incapable of making his own signature; and at his request guided his hand as he wrote his name to the will.

In the argument, it was assumed that the signing was, in point of fact, not the act of the testator, but of Mr. Martin, who guided his hand. And as he was not expressly directed by the testator to sign his name to the will, it is insisted, that the' statute was not complied with; consequently the execution of the will was void.

This position is clearly untenable. It is not to be controverted, that, within the meaning of the statute, the direction to sign the name of the testator, may be given by any words, or even signs which distinctly show that the testator desired and authorized the act to be done. The testator could in no way, more clearly indicate his wish that another should sign for him-, than by requesting him to do so; and the request itself, conveyed full authority to perform the act. The testator’s hand, at his own request, was guided in making the signature. That was certainly, at the least, equivalent to an express direction to another to sign his name.

But, whatever it may have been in point of fact, the act of signing, upon strictly legal principles, was the act of the testator. He had full consciousness of the act to be done. He desired and intended to execute the will. By submitting to have his hand guided by another, as he made the signature, the act was none the less his own.

“A signature,” (says Greenleaf,) “ consists both of the act of writing a party’s name, and of the intention of thereby finally authenticating the instrument. It is not necessary that a testator should write his entire name. His mark is now held sufficient. And if the signature is made by another guiding his hand, with his consent, it is held sufficient.” 2 Green. Ev. § 674.

In Stevens and Wife v. Vancleve, where the testator, who was incapacitated by disease, from making his signature, consented to have his hand guided in signing his name, it was adjudged to be .the act of the testator, and a sufficient signing, within the meaning of an Act, which, in this respect, is precisely similar to our own. 4 Wash. Cir. C. Rep. 262. The reasons upon which the rule is founded, manifestly, make it applicable to any case in which the testator, being capable in law to make a will, has full consciousness of the act to be performed, and intends to do it, whether his incapacity to write arises from ignorance, or is caused by accident or disease.

The next ground taken for the appellants, was, that the will was not published in conformity with the directions of the statute.

Publication is the act or acts of the party, by which he manifests that it is his intention to give effect to the paper, as his last will and testament. 2 Green. Ev. 561.

If the facts which the evidence establishes, were found by a special verdict, there might possibly be some very slight ground to doubt, as to the sufficiency of the publication, as in such event, •this court would be precluded from drawing any inference from the facts contained in the special verdict, but would be confined strictly to a determination of the law arising upon those facts. But as the jury found, generally, that the instrument submitted to their examination, was the valid last will and testament of the testator, the evidence submitted on the trial was unquestionably sufficient to authorize the presumption, that there was a due and legal publication of the will, although the evidence may not have directly established a formal and express publication.

Hence, if it were conceded that, under the statute, a formal publication is necessary to the validity of a will, we could not, legitimately, set aside the decree. But we apprehend, that, under the proper construction of the Act, a formal publication was unnecessary, and was therefore a question not involved in the issue.

The statute of this State, in respect to the question before us, was copied, literally, from the statute of "Virginia, which was taken from the Statute of 29 Car. 2, Ch. 3. And it is settled, by authority, in England, that the formal publication of a will is unnecessary. A will may be good, under the Statute of Frauds, without any words of the testator declaratory of the nature of the instrument, or any formal recognition of it, or allusion to it. 4 Kent, Com. 515, and cases cited; 2 Green. Ev. § 675, and cases cited in note 5; 1 Lomax, Ex’ors, 26. It seems, that in all of the States, in which the provisions of thé Statute 29 Car. 2, in regard to wills, have been adopted, the same doctrine is recognized. 4 Kent, 514, 515; 2 Green. Ev. § 675. The rule is based upon the plain and manifest construction of the statute ; we, therefore, have no hesitation in adopting it.

In reference to the question of the illegality and insufficiency of the attestation, there is as little ground to question the propriety of the verdict, or the decree of the Court of Probates, dismissing the petition.

The object of the statute, in requiring that the witnesses shall subscribe their names in the presence of the testator, is, that he may have ocular evidence of the identity of the instrument attested as his will, and thus to prevent the fraudulent substitution of another.

The presence contemplated by the statute, is not simply the bodily presence of the testator; it is essential, that he be also mentally capable of recognizing, and actually conscious of the act performed before him. In the meaning of the law, to be corporeally present, it is not indispensable that the testator and the witnesses should be in the same room, or even in the same house, where the attestation is made. An attestation made in the same room with the testator, is prima facie, good. And where the attestation is shown to have taken place in a different apartment, it is prima facie bad. But this presumption, in either case, will yield to positive proof. And it is settled by all the authorities, that it is not absolutely essential that the testator should actually see, but if the attestation be shown to have been made within the scope of the testator’s view from his actual position, it will be sufficient. For example, when the testator, having a mental consciousness of the act which is performed, in consequence of the position in which he lies upon his bed, does not actually see the attesting witnesses subscribe their names, the attestation will be good, provided he had, the physical ability to change his position, and by doing so could have seen the proceeding. Shires v. Glasscock, 1 Ld. Raym. 507; Doe dem. Wright v. Manifold, 1 Maule & S. 294; Capon v. Dade, 1 Br. Ch. C. 99; Todd v. Winchelsea, 2 Carr. & P. 488; Neil et al. v. Neil, 1 Leigh, 6; Knock v. Knock’s Ex’s, 10 Grattan, 106; Green, Ev. § 678; Lomax, Ex’s, 29, 30.

These principles, applied to the evidence, fully justify the verdict of the jury.

The testimony of the only witness relied on to show that the will was not legally attested as a devise of real estate, was that of Spring, one of the attesting witnesses. According to his testimony, at the time when the will was being attested, at the bedside of the testator, the testator was lying upon his back, with his head inclined to the right, so that he could not havé seen the witnesses while in the act of attestation. But neither Spring nor any other witness, stated that the testator was unable to change the position of his head, so as actually to see the attesting witnesses subscribe their names to the will. This feature of the evidence distinguishes the case before us from the case of Neil v. Neil, above cited.

In that case, it was proved that the position of the testator made it impossible for him to see the witnesses while in the act of attestation, and that from extreme debility he was unable, withorrt assist-anee, to turn Ms face towards them. Tbe attestation was adjudged insufficient by a majority of tbe court. But it was expressly conceded, that if tbe incapacity of tbe testator to change bis position bad not been proved, tbe attestation would have been good witbin tbe meaning of tbe statute. That case stands alone in Virginia; and it was said in Nock v. Node, decided in tbe same court, that it was repudiated everywhere else. But if admitted to be authority, it would still be decisive against tbe appellants.

Decree affirmed.