88 Pa. Super. 556 | Pa. Super. Ct. | 1926
Argued April 30, 1926. One of the heirs at law of Mary Jane Wilson appeals from a decree of the Orphans' Court dismissing an appeal from the action of the Register of Wills of Allegheny County in probating the following paper as the last will and testament of the said Mary Jane Wilson, deceased:
Also pay hospital bills.
No one else to be notified. Undertaker Woods, Oakland.
If anything should happen before morning call Perrysville Ave. Orphanage Mr. Graham to have all my clothes.
Her X Mark
Witness
James C. Jacobs Anna W. Heslop Dec. 27, 1924."
For more than fifteen years prior to her death the testatrix had been a resident of Pittsburgh. For the last five years of her life, when not employed, she made her home with the Mrs. Graham named in the *558 will, but paid nothing for her room or board. Her next of kin are two brothers who live outside of Pennsylvania, whom she had not seen for several years. She was taken to the hospital, critically ill, two or three days before her death. About two o'clock in the morning of December 27, 1924, she asked the attending nurse, Miss Beers, if she "would write some things that she wanted to be left to Mrs. Graham, because she felt her condition was not good." She told Miss Beers what she wanted done. Miss Beers testified: " She told me just what I wrote down on the paper." After Miss Beers had reduced the instructions to writing, she read it to the testatrix several times and the latter said: "That is correct." Miss Beers retained the paper until she went off duty at seven o'clock in the morning, when she handed it to Miss Grinberg, the day nurse. Miss Grinberg put the paper on the decedent's chart. About eleven o'clock in the morning when Mrs. Graham called to see the testatrix, the latter said to Miss Grinberg that as Mrs. Graham was there she felt that the paper, which she called a will, could be witnessed and signed. Miss Grinberg called to the room two persons, employees of the hospital, whose names appear as subscribing witnesses to the writing, and in their presence read the paper to the decedent and asked her whether she was ready to have it witnessed and signed. The testatrix nodded her head, indicating that she was. Miss Grinberg then handed to her a pen and she marked a cross at the end of the writing. Then the paper was signed by the subscribing witnesses, who testified that the will was read to the testatrix in their presence, that, while she was very weak physically and did not talk, she was mentally clear, understood the contents of the paper and, when asked if the writing was her will, nodded her head in assent and took the pen in her hand and made her mark unaided. The paper was executed between eleven and eleven-thirty o'clock on the morning of *559 December 27th, and the decedent's death occurred about five o'clock the same afternoon.
The sole question raised is whether the paper was signed and executed in compliance with our Wills Act of June 7, 1917, P.L. 403. The second and third sections of that act prescribe the method of executing a will in Pennsylvania. The second section reads as follows: "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, or by some person in his presence and by his expressed direction." The third section reads as follows: "If the testator be unable to sign his name, for any reason other than the extremity of his last sickness, a will to which his name is subscribed in his presence, by his direction and authority, and to which he makes his mark or cross, unless unable so to do, in which case his mark or cross shall not be required, shall be as valid as though he had signed his name thereto; provided, that such will shall be proved by the oaths or affirmations of two or more competent witnesses."
It is strenuously contended for the appellant that the will was not executed in the method prescribed by either of these sections of the act. The execution did not conform to the requirements of the third section, because the name of the testatrix was not subscribed to the will. But, by the terms of that section, its application is limited to persons who are unable to sign their names for a reason other than the extremity of their last sickness. As the learned court below found on sufficient evidence that the testatrix was prevented from signing her name by the extremity of her last sickness, it is manifest that the third section does not apply to this case. Therefore, the point to be decided is whether the crossmark placed on the will by the testatrix was a signature, that is, whether the paper was signed by her, as required by the second section of the act. That section is a re-enactment of *560
the sixth section of the Wills Act of April 8, 1833, P.L. 249. That act was founded on the English statute of frauds, 29 Car. II, Sec. 2 the phraseology of which it follows closely. Under the English statute it was decided repeatedly that a signature by a mark was sufficient. While it was decided in Graybill v. Barr,
The decree of the court below is affirmed, and the appeal is dismissed, the costs in this court to be paid by the Estate of Mary Jane Wilson, deceased.