10 Am. Dec. 494 | Va. | 1822
April 10th.-—
It w’ould be unnecessary in this case to decide, whether the deposition of Ball was properly rejected, if the court was unanimously of opinion that this will, on the merits, could not be supported as a good will of lands. This however not being the case, it becomes necessary-for me, at least to express my doubts as to the correctness of that decision.
I think it clear, that if a man’s name is used as next friend to infants, without his knowledge or consent at any time given, he is not answerable for costs, and if not so answerable, and in no other way interested, that he is a good witness. The improper conduct of adult plaintiffs or their counsel, in prosecuting a suit in this way, jointly
There is no proof in the cause, that the witness even 1 - knew that his name had been used as next friend $ on the contrary, it is in proof, that when it was first so used he was ignorant of it. It does not appear that he ever paid fees to counsel, attended to take depositions, or took any part in the business. It is said, he was probably so named in the commissions; but this does not appear : on the contrary, the caption of his deposition recites a commission in a suit between “ Burwell and others and Corbin and others and in another deposition taken before the same justices, the caption recites the names of the parties, without naming Ball as next friend. Had he been so named in the commission by which his deposition was taken, it is strange that neither the justices nor the parties should have adverted to the extraordinary fact of one of the plaintiffs giving evidence in the cause.
But this deposition was not excepted to, by endorsement on it, as is usual in chancery suits. On the contrary, the cause was twice heard on this deposition with others, without objection; once, probably when Ball was alive, and once during the same term, at which his death is stated in the record ; at which time too the issue was directed, and the depositions of the witnesses who were dead, ordered to be read on the trial.
There is, therefore, not only the absence of the necessary proof to shew an interest in the witness; but all these facts and circumstances tend to prove the contrary.
But then it is said, that if Ball was not answerable for costs, there was no next friend of the infants, and so they were not properly parties to the suit; and as in that case depositions against them could not be read, so neither could those in their favor; and that on this ground, Ball’s deposition would be properly rejected. This at first appeared to me a formidable objection; hut on reflection I am not entirely satisfied with it. Suppose one of the de
These are important considerations, which 1 should deem worthy of further investigation, and proper to be decided one way or the other, were it not, that excluding Ball’s testimony, and considering every thing else as regular, I am satisfied, on the merits, that the writing in question cannot be supported as a good will of lands.
This paper-writing, signature and all, is in the handwriting of the appellee Corbin, who is the principal devisee ; and the question is, whether its execution is properly attested and proved by two subscribing witnesses ?
The statute requires that a will of lands shall be in writing, and where not wholly written by the. testator himself, shall be signed by him, or by some other person in his presence and by his direction, and be attested by two or more credible witnesses in his presence.
In the case before us, the alledged will is one which is not signed by the testator, as before stated, but it is proved by a witness, (independent of what is said by one of the subscribing winesses, as hereafter noticed,) that Corbin
_ , , . , , _ ,, ,. I understand it to be clearly established by ail the authorities, that every important requisite of the statute must be attested and proved by each witness. Otherwise, there would be but one witness to prove what the law says must be attested by two. They must attest a writing, not a blank sheet; they must attest a writing signed, and not one unsigned. When this writing was handed to the first subscribing witness, and he was asked to attest it, it was not signed. Suppose be had attested it in that form, and it had remained unsigned until the next day, when the second witness attested it, and the testator had then discovered the omission, and signed it; would this he an attestation of a signed will by two witnesses ? Or suppose that one witness attests in the presence of the testator, and the same witness takes the same paper into an adjoining room, where another witness only hears the testator acknowledge, and attests the same paper, but not in his presence ; although the first witness is one of the highest credit, and a jury on his evidence should find that it was the same paper which the testator had but the moment before signed and published as his will, could it be established as such under the statute ?
As I understand the law and all the adjudications upon it, we are not at liberty to believe any thing, which the statute requires to make the will a complete one, on the testimony of one witness. Suppose the statute bad required but one witness, and he knows only a part of these facts, which he is to attest; as, for instance, he knows it was a writing he attested, but he does not know it was a signed writing, and it turns out that the signature, which afterwards appears to it, was not even in the hand-writing of the alledged testator. Could this be established as a will executed, according to the statute ? And would noi such a decision open a wide door to frauds l
It was a long time, and after much hesitation, before the courts were satisfied, that all the witnesses must not be present at tlie same time, and see the very fact of signing. Indeed, they ultimately came to this decision, as it were by piece-meal. First, the testator rescaled; which was considered (erroneously as is now admitted) to he an act equal to signing; then came a case in which he drew his pen over his name before a subsequent witness. By these solemn acts, it was considered that he had signed in fact before each witness, at different timos; and although the statute required that they should attest a signed paper in presence of the testator; yet, as it did not require them to do so in the presence of each other, and having attested what was considered the same fact, though at different times, it was thought they could as well prove it as if they had attested together. Having thus established the propriety of a separate attestation, the nest question was, whether an acknowledgment of the hand-writings without resealing or drawing the pen again over the name, would do ? It was then discovered, that separate attestations had been too long established to have that question disturbed. Admitting this to be law, then it was found that an acknowledgment of the hand-writing was as good, nay better, than resealing, which at most could only bo considered as a recognition of the name opposite to the seal | sealing itself being no signing within the statute 2 and that it was even better than drawing the pen over the
An acknowledgment, then, that the signature was the hand-writing of the testator, was considered tantamount *° proof of seeing him write his name. It was capable of disproof too, if a will not signed by him, was offered to probat; and although it was admitted, that even with this guard, these decisions opened a door to frauds; yet the cases had gone too far to admit of the court’s retracing their steps, which they would willingly have done j but they protest against going farther. No case is to be found, in which the acknowledgment of a signature, not in the hand-writing of the testator, was held enough.
In Ellis vs. Smith,
I am clearly of opinion, therefore, that there is no case under the statute of frauds in England, in which an acknowledgment has been received as equivalent to proof of actual signing, except where the testator has, in some way, recognized the signature as his own hand-writing in the presence of all the witnesses, and who were therefore all capable of attesting the paper as a signed paper. Such recognition has only been held as something equivalent to personal presence, at the act of signing ; but it could not be so, unless the signature was at least seen, and in some way acknowledged. No case, I think, has gone beyond this, and all the judges agree that even this was going too far.
If lord Hardwicke is light, as I think he is, in saying that even an express acknowledgment of those facts will not do, surely one, which would import at most that it was his own hand-writing, will not. .
One reason why a seal was not considered equal to signing was, that a seal could at this day be easily counterfeited. It only remained to counterfeit the hand-writing of a witness or witnesses who were dead, by proving whose hand writing the will would be established. So in the case of signature by another, all that will be necessary will be to sign it in a hand not like that of any person known, and forge the hand-writing of witnesses who are dead; or get witnesses to swear that he acknowledged the will, without stating who wrote the signature, so as to avoid detection from the guard that circumstance would afford, and the will is established, as one signed by authority.
When a man acknowledges a will signed by himself, he knows the fact that he did sign it, and if it turns out that a will is offered to probat, not signed by himself, the fraud is detected. But he may think he is acknowledging such a will as this, when in fact, being in extremity, another, not signed by him, has been imposed upon him.
I am therefore humbly of opinion, that if we establish this will, we must do it on the testimony of one witness only, and as the law does not permit this, that the decree of the chancellor must be reversed.
The. only question submitted to the court by the agreement of the parties and the special verdict found in pursuance of that agreement, is, whether the paper-writing, purporting to be the last will of James B. Burwell is proved by the attesting witnesses Scrimgcr and Barrick, according to the act referred to in the verdict. The material words in that act arc, ‘‘ 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 direc- « tion ; and moreover, if not wholly written by himself or “ herself be attested by two or more witnesses in his or her “ presence.” It is admitted that Scrimger’s testimony is entirely in compliance with the statute. He proves all that is required by it 5 but in examining the testimony of Barrick the second witness, no aid is to be derived from Scrimger’s testimony, because the statute requires two witnesses to the same facts. Nor is the testimony of Barrick to be eked out by any thing in the verdict, unless he also proves the facts required by the statute. So far the paper-writing is still proved by one witness only, and the statute is not complied with. What is proved by Barrick? He says (as found by the jury) that he was sent for and went to the house of James B. Burwell: that he found him sitting pn the bed with the said paper-writing in his band (lie calls it the said paper-writing before it was attested by him, as Scrimgor does before it was signed by him or by Corbin, for Burwell,) when the said Burwell asked him to sign that paper, and thereupon he signed his name to the said paper as a witness, in the presence of the said Burwell: that he then asked the said
It is my fortune to differ in opinion on this case, after great deliberation, from all the other judges. It is therefore my right, and perhaps my duty, to assign, somewhat at large, the grounds and reasons of that opinion.
Upon the trial of the issue in this cause, the appellants produced the deposition of William Ball who was admit
It is admitted that there was no specif c order of the court, admitting Ball as the next friend; but the question is, whether under the practice of this country, under all the circumstances of this case and all the admissions of the parties, that fact ought not to have been taken for granted. Those circumstances narrowed the enquiry before the court. The real quest ion therefore was, not so much whether Ball was the legalized next friend of the plaintiffs, as whether the appellants were at liberty, under the circumstauces and admissions aforesaid, to make the. objection.
On this subject of prochein ami, the doctrine is that the nearest relation is generally the next friend of an infant; but as that relation may, himself, have injured the infant, and be liable to a suit therefor, or may be otherwise an improper person, the court will permit any person to institute a suit on his behalf, and he is to be named as next friend in the bill.
This next friend is not only liable for the costs, but is to be removed if he is treacherous to, or negligent of, the interests of the infant ;
In the case before us, it is true that Ball is not named as next friend in the bill. A blank is left for the name in that bill; but this omission is abundantly supplied. In the heading or caption of the record or proceedings, he is named as such. He is so named at the rules in October, 1812, when a conditional order was made taking the bill for confessed; and this order, so headed, was set aside in court on the 12th October, 1818. To all these proceedings the appellants were parties and privy; and in the last case an order was made in court, setting aside a rule in which Ball is stated to be the next friend of the infants. Was not this a concession by the court, and an admission by the co-plaintiffs, that he really stood in that character ? Again; to say nothing of the admissions probably contained in the commission under which this deposition was taken, how does the matter stand, upon the order of the 21st of September, 1816 ? On that day Bacon Burwell,' one of the appellants now making the objection that Ball was hot in reality the next -friend of the infants, moved
However it might be, therefore, in relation to Bali’s representatives, were they now before the court and charged with the costs, can it he doubted that quoad the appellants, their own repeated admissions, and the repeated recognitions of Ball as the next friend by the court, will estop them from making the objection ? Notwithstanding this, however, they were still not without remedy as to getting his (Ball’s) deposition, during his lifetime. They might, if his evidence was important, have had his name struck out of the record, another next friend substituted, and then have taken his deposition,
I copie next to consider this case upon the merits. This cause having been heard in the court of chancery, upon the exhibits and depositions of the witnesses, and those depositions being found to be conflicting and contradictory, an order was made by,the said court, referring the question of; the validity of the will, to a jury ; with the usual provision, that on the trial of the issue, copies of the bills, answers, exhibits and depositions of such of the witnesses as are dead or cannot attend, should be read in evidence. On the trial of the issue in the superior court upon that evidence, and the jury at the end of the third day not having agreed upon a verdict, on the fourth day, for the purpose as is supposed, of facilitating that decision, it was agreed by the parties, that the question of law arising upon the evidence of the subscribing witnesses, in the event that .that evidence should be credited by the jury, should be reserved by a special finding of the facts that the jury may determine to be proved by that evidence, to be determined by the proper court. This agreement excluded frbm the consideration of the jury all the other testimony in the cause, except Chat of the two subscribing witnesses and that which respected their credibility 3 and considering that credibility was not only expressly referred to the jury as aforesaid, but was also peculiarly proper for their consideration, I shall shut my eyes upon all the other testimony existing in the cause, except the facts which are specially found by the verdict. 1 must also again remark, that as the special finding is agreed and required to be made upon the evidence of the subscribing witnesses (that is, of both of those witnesses,) that
While under the influence of this rule of construction, as applied to so much of the verdict as relates to Scrimger’s attestation, it must be admitted that Barrick was then absent ; a different result will take place in relation to what passed at the time of Harriett's attestation. It may well be, for any thing seen in this verdict, that Scriinger was then also present; and if we were even to refer to the depositions of those witnesses as contained in the record, there is nothing therein to shew the contrary. Scriinger although present on the third, might have been also present on the fourth of September. This however, we are authorized, if not compelled, to infer from this verdict, taken in connection with the agreement of the parties j and that inference is irresistibly strengthened by that part of the verdict which identifies the paper in question, with that which was attested by Scriinger and Barrick. In relation to Barrick, Scriinger could not well have known that fact, unless he were personally present. If this is in reality, or must be taken to be the fact, upon the true construction of the verdict, then we have the testimony of both the subscribing witnesses, both as to the testator’s acknowledgment of the will, and also as to Barrick’s at-
Before I go into the question whether the acknowledgment of a will, or of a signature thereto, is equivalent to an attestation of the specific fact of the signing itself; and while I do not abandon the ground I have taken, that the testator’s acknowledgment of the will before us, and the attestation by Barrick must be taken, upon this verdict, to be proved by Scrimger as well as Barrick, when Bar-rick alone (like Scrimger) was amply sufficient to establish the fact ; I must state one or two preliminary observations.
In the first place, it is not necessary that the subscribing witnesses should attest together, or at the same time.
These desiderata entirely exist in the case before us. The testator not only published to Barrick the paper in question, and acknowledged, it to be his last will, but the jury further find that the paper thus acknowledged to, and attested by Barrick, was the same paper that was also attested by Scrimger, and proved in the superior court
This view of the facts of this case, brings to our consideration, the only real question existing in this cause. That question is, whether a will signed for another, by his express direction, and acknowledged and published by the testator as his will, is duly proved under that member of our statute, which legalizes a signature for a testator by the hand of another. While this question has several
As to the first question (i. e. one touching a will signed by the testator himself,) it has been expressly decided. If you throw out of view circumstances which are entirely unimportant, the case of Westbreach vs. Kennedy
The only circumstance which can differ that case from ours, therefore, is the sealing of the will in the former. Sealing, however, is not the signing required by the provisions of the statute. It is, at most, only a circumstance going to shew an acknowledgment of such signing. It is therefore entirely unimportant, when you have, the superior and more conclusive evidence resulting from the acknowledgment and delivery. That which is only a circumstance, tending to shew an acknowledgment, is as nothing, when compared to the actual acknowledgment and delivery itself. That circumstance was therefore entirely supererogatory in that case, where the acknowledgment and delivery also existed ; nor will it be missed in this case, where we have also that acknowledgment. In that case the circumstance of sealing was, at most, only relied on as one from whence to infer an acknowledgment, and was merged (if I may so say) in the actual acknowledgment and delivery, which was proved in the case; it was included in it. It would be also held to be included in this case, if it existed, and the omission is unimportant, as it does not. Its effect and importance entirely vanishes under the solemn acknowledgment and delivery which is found to have taken place as to the will before us. The existence of the circumstance of sealing in that case, and its non-existence in this, cannot therefore differ two cases, to which the actual acknowledgment itself is common ; and which, as to all important particulars, are precisely the same.
This would be the result, in relation to a mere circumstance, however important and unexceptionable. The objection holds with increased force, however, as to the mere fact of sealing, considered as a circumstance authenticating a signature. Such sealing is entirely of a weak and unimportant character. It is entitled to but little weight indeed. Thus, it is said by chief justice
I throw, therefore, out of the case of Westbreach vs. Kennedy, as being entirely deceptive, subordinate and unimportant, the fact of the sealing which existed in that casej and then the two cases are precisely alike. Then it is decided, that the acknowledgment of the will is entirely sufficient, and that there need nest bo a specific acknowledgment of the signature to IL It pats to rest the doubts on this subject, which had, before, been mooted in the English courts, and advances a step further in relation to the statute, in 'favor of common sense. If I acknow
_ , , , . . ... .., . But this last decision was not wanting to settle this question, conclusively, to my satisfaction. It had been before settled, upon the principle of the adjudged cases. Thus, in the case of Grayson vs. Atkinson,
I take it therefore to be a point not at this day to he questioned, that the acknowledgment and publication of a paper as a will is a sufficient proof of the signing thereof, if it further appears, that the paper has a signature. If there was any doubt before, the case of Westbreach vs. Kennedy has put the same at rest; to say nothing of the unanswerable principles on the subject of acknowledgment, to which I have adverted. There is, perhaps, however, no adjudged case in relation to a will signed for another, as in the case before us. That, however, is not very strange, when there is perhaps but a single conclusive decision in relation to the more common case of a signature by the testator himself. There is however no decision against us, and in principle there is no difference between the two cases. It was indeed said by lord Hardwicke in Ellis vs. Smith, that the decision then to be given might lead the way to further deviations from the statute; and by consequence to allow the testator’s declaration that another signed by him, to be good. He added, that an authority given by a testator is a collateral thing and ought to be proved; and that consequence is not to be built upon consequence, in cases of this kind. I will here remark, that these observations of this judge, are entirely obiter and extra-judicial: that they did not apply, at all, to the case then before the court: that this point had not been argued: and that every thing collateral or not collateral which is susceptible of proof, is also capable of being acknowledged j which acknowledgment is indeed only a superior species of proof. The signing of a will for another, at his request, is indeed rather a more complex idea than a signature by one’s self; but it is equally within the knowledge and power of the party : it is equally susceptible of proof. Admitting the existence of the signature, I am just as competent to admit
These are my sentiments upon this case, after a long and mature consideration. I am therefore clearly of opinion, that the will in question has been duly proved, according to the requisitions of the statute ; that the decree of the court of chancery which has affirmed the judgment of the superior court, and the conditional verdict of the jury, should be itself affirmed ; and that the will before us should be established. The other judges are, however, of a different opinion; and their decision is, that the decree should be reversed, and the following entered as the opinion pnd decree of the court:
“ This day came the parties,” &c. “ and the court,” &c. “ is of opinion, that the paper-writing in the bill men- « tioned, which.is alledged by the appellees to be the last s< will and testament of James B Burwell, is not proved “ by the attesting witnesses according to the act of as-(i sembly referred to in the verdict, and that the said deeí cree, so far as it establishes the said paper-writing to “ be a good devise of real estate, is erroneous. There- « fore it is decreed,” &c.
1 Vez. junr. 11.
By some accident this opinion is not in the possession of tlie Reporter | Tml if it can he procured hereafter; it shall he given in the append!::.
3 Lev. 1.
2 Vezey, senr. 454.
1 Vezey, junr. 11.
Mitf. ss.
1 Ath. 570,
1 Strange, 708,
Mitf. 25.
Mitt 35.
7 Bac. abr. 30.
Page 23.
Bac. abr. 317.
l Vez, and Beams, 302
1 Vez. Jr. p. 11.
p. 76.
p. 67.
2 Vez. 456.
page 71.
p. 76.
ib. p. 121.