No. 54 | Pa. | Jan 3, 1888
Opinion,
The first assignment of error presents the only question we need discuss. Said assignment is as follows: The court erred in affirming the decree of the register, and in overruling and dismissing the first exception filed before the register, upon the appeal from the decree of the register, which said exception is in the words following, to wit: “ The said alleged last will and testament is not signed at the end thereof by the alleged testator, as required by the act of assembly in such case made and provided.”
The statute of 1833 enacts that “Every will shall be in writing, and unless the person making the same shall be prevented by the extremity of his last sickness, shall be signed by him at the end thereof,” etc.
The will of Benjamin Wineland was not signed by him at the end thereof. It was signed by him, but after the signature were the following words: “I will that Cephas Lash and Henry Wineland be my executors.” This was not signed by the testator. After these words came the attestation clause which was in the usual form.
Upon appeal from the register to the Orphans Court, the said court reversed the register so far as the granting of letters testamentary was concerned, and ordered letters of administration cum testamento annexo to be issued to the parties legally entitled thereto. The learned judge of the Orphans’ Court makes no reference in his opinion to the question we are now considering. It deals with other questions in the case which would be important if the will were properly executed.
We think it is not. It cannot be said that the clause appointing the executors is no part of a will. It is an important part though not always essential. It cannot be brushed aside as mere idle words to which no meaning is to be attached. Nor can they be rejected and so much of the will be probated as stands above the signature. As was said by Chief Justice Gibson in Hays v. Harden, 6 Pa. 413: “ It is better, therefore, that an informal addition should operate as a statutory revocation of the whole than that a plain injunction should be frittered away by exceptions.” I am aware that our act of 1833 closely resembles the statute of 1 Yict. c. 26, and that some English authorities seem to sanction the doctrine contended for by the appellees. It is said in 1 Williams Executors, 69, in commenting upon the above statute of Viet, and its supplement of 15 Yict. c. 24, that “ in order to get rid of the objection that the will was not signed at the foot or end thereof, the court in some cases has thought itself justified in regarding a portion running below the signature as forming no part of the will, and granting probate exclusive of that portion. Our act of 1833 as well as the statute of Viet, are in part borrowed from the British statute of frauds, two sections of which have been so evaded by judicial construction as to be practically repealed. We do not propose that the act of 1833 shall meet with the same fate. The legislature have laid down a rule so plain that it cannot be evaded without a clear violation of its terms. No room is left for judicial construction or interpretation. It says a will must be signed at the end thereof, and that’s the end of it.
We are of opinion that this paper was not a will within the
The decree is reversed at the costs of the appellee, and it is ordered that the letters of administration cum testamento be revoked, and the probate of the will vacated.