73 Vt. 129 | Vt. | 1901
The probating of the will of Ephraim E. Claflin was contested on the ground that it was not properly executed. The instrument sought to be established as such will, was received in evidence, and it was conceded to be in the handwriting of the testator, except the signatures of the witnesses thereto, and the words “Ephraim E. Clafiin’s Will” on the outside. It purports on its face to have been duly executed. The attestation clause reads, “Signed, sealed, published and declared by the said Ephraim E. Claflin as his last will and testament in the presence of us who have hereunto subscribed our names as witnesses thereof, at the request and in the presence of the said testator and in the presence of each otherand it was signed by E. I. Claflin, E. O. Mann, and Josie E. Rand as witnesses. The evidence tended to show that the testator had charge of and superintended its execution, and that, he was of
At the close of the proponents’ evidence a verdict was ordered for the contestants, to which proponents excepted. The evidence, as stated herein, is given in its most favorable light for the proponents. Was it error to order a verdict, is the question.
It was not necessary for the testator to place his name on the paper in the presence of the attesting witnesses. If the will was signed by him without their presence, and he afterwards requested them to witness his signature, it was a sufficient acknowledgment of his signature, and a compliance with the law in this regard: Adams v. Field, 21 Vt. 256; Baskin v. Baskin, 36 N. Y. 416. No form of words is necessary to indicate to witnesses that the testator intends to give effect to a paper as his will. Any communication of this idea by word, sign, motions, or conduct, is sufficient in law to constitute a publication, and herein every case must depend upon its own peculiar circumstances: Peck v. Cary 27 N. Y. 9, 84 Am. Dec. 220; Ludlow v. Ludlow, 9 Stew. Eq. 597; Haynes v. Haynes, 23 Ohio St. 598.
In the case at bar, the writing and signing of the will, and the superintending of its execution, constituted a sufficient publication thereof by the testator; and in attesting the will the witnesses attested its publication: Dean v. Heirs of Dean, 27 Vt. 746. In Ilott v. Genge, 3 Curteis 181, Sir Herbert Jenner Fu-st said, “This is a determination that where a testator had written a will himself, and signed it, and produced that will, so signed (for this is a point never to be lost sight of) to witnesses, and desires them to sign .their name, that amounts to an acknowledgment that the paper signed by them is his will, and the instrument is complete for its purpose; it is acknowledged by the testator to be his will.” Nor was it necessary to show
With the proponents’ case standing thus, it could not be taken from the jury, and to order a verdict was error.
Judgment reversed and cause remanded.