| Ala. | Nov 12, 1912
The affirmative charge was given for the contestants upon the trial of the contest of the probate of the alleged last will and testament of Martha Dawkins, deceased.
The theory prevailing with the court was that the paper propounded for probate was not “attested” and “subscribed” by ttoo witnesses as the law (Code, § 6172) prescribes. The paper propounded was written by W. E. Dozier, an attorney. The name, “Martha Dawkins,” was affixed to the paper by Dozier at her request and in her presence. She made her mark thereto, between the words of her name, Dozier holding the pen with her. Dozier subscribed his name thereto as a witness, within the prescriptions of the law therefor. The other name appearing as a subscribing witness is that of Joe Dawkins, who was present on the occasion. His name was placed on the papers under these circumstances, and as the bill recites: “ * * That Joe Dawkins was not able to write his name well; that witness (Dozier) took a separate piece of paper, and had the said Joe Dawkins practice writing his name, and sign his name as a witness thereto by W. E..Dozier holding the bottom of the pen and Joe 'Dawkins holding the pen just above the hand of said Dozier, and they together traced the name of Joe, when the witness Dozier turned the pen loose, and Joe Dawkins made the letter D, and the witness
Joe Dawkins testified, as presently important, as follows : “ * * * That the said Dozier wrote it [the alleged will] at the dictation of his sister, Martha Dawkins; * * * that she then requested Mr. Dozier to sign her name for her to the will, which he-did, and she touched the pen and made her mark; that she could not write; that W. E. Dozier, in her presence, and at her request, signed the instrument as a witness; that she asked me (Joe Dawkins) to witness the will, and, as I could not write very well, I asked Mr. Doizer to help me, and while Mr. Dozier held, the bottom of the pen, and I held the top next to his hand, Mr. Dozier guiding the pen, I signed my name as a witness to said will in the presence of the said Martha Dawkins. I can write a little, but not much. I recognize the paper, as above identified, as the paper that I signed as a witness in the manner herein above set forth. The witness further testified that he could not read, and was shown the will and asked to read the same, and could not read a single word. * * * ”
The evidence was without conflict that Martha Dawkins could not write. Whether we take the writing of Martha Dawkins’ name on the paper by Dozier at her request and in her presence, or, on the other hand, the affixing of her mark thereto, as the physical act of execution thereof, it is clear, under our decisions, that this feature of due execution was fully accomplished by the party to be bound thereby. It is, of course, certain that Dozier’s attestation met all legal requirements.
Under the state of the evidence shown by this record, it must be concluded, as of fact, that Joe Dawkins did. not write his name in attestation of Martha Dawkins’ execution of the paper; she being shown, undisputedly, to be unable to write. His participation in the act of affixing his name on the paper was, except in the making of the letter D, that of an involuntary guidance of his hand, by Dozier, in the formation of Dawkins’ name on the paper, as he expressly testified. At most, Dawkins, himself, only made his marh upon the paper, viz., the letter D. If Martha Dawkins had written her own name in execution of the paper, such an attestation as Dawkins made would have sufficed. — Garrett v. Heflin, supra.
The case of Riley v. Riley, 36 Ala. 496" court="Ala." date_filed="1860-06-15" href="https://app.midpage.ai/document/riley-v-riley-6506770?utm_source=webapp" opinion_id="6506770">36 Ala. 496, and Bailey’s Heirs v. Bailey’s Ex’r, 35 Ala. 690, were especially considered in Garrett v. Heflin, and their conclusions were adhered to. The particular question, in this connection, dealt with in Riley v. Riley, was whether the writing of an attesting witness’ name by another attesting witness, when the former could write, afforded the attestation and subscription the laws exact. The court ruled that it did not. Bailey v. Bailey concerned the legal sufficiency of a testator’s execution by the employment of his mark in connection with a name, written by another, not his own. The court upheld the sufficiency
The statute (Code, § 1) construed in Garrett v. Heflin has been re-adopted with that construction impressed upon it. We are constrained to now adhere thereto. The fact that Martha Dawkins’ name was written by Dozier at her request and in her presence cannot affect the conclusion. Its sound reason holds, even though that had been the only mode of Martha Dawkins’ execution of the instrument. A testator may effectually execute by mark . If it should be held that one attesting witness might subscribe by mark, then, obviously, two or more could do so. In that event we would have an instrument without the basis for proof of its execution by showing the handwriting of attesting witnesses who were beyond the reach of examination or who had become incompetent to testify in the premises. — Code, §§ 6186, 6187. The matter is of too much importance and the consequences of too grave a nature to allow a pronouncement that would attain such a result.
The affirmative charge was properly given. The instrument was not attested and subscribed as the law requires. — Code, § 6172.
Affirmed.