20 D.C. 493 | D.C. | 1892
delivered the opinion of the Court:
The justice holding the special term for Orphans’ Court business has certified to this court the question whether a certain paper writing, purporting to be a codicil to the will of the late Admiral Porter, should be admitted as a.will disposing of real estate. The particular question is, whether that paper was attested by William Wilkes, one of the three persons whose names were subscribed as witnesses.
The proceedings in the Orphans’ Court, relating to proof of the will and codicil, were as follows: Mrs. Edna Campbell, mentioned in those papers as Edna Porter, appeared by her solicitor and demanded full proof of their execution. Thereupon J. M. Alden, Chauncey Thomas and William Wilkes, who were offered as witnesses to the will, testified that, at or about the date thereof, they saw Admiral Porter sign and heard him acknowledge it as his last will and testament, and that thereupon, at his request, they subscribed their names as witnesses. As to the paper purporting to be a codicil, Alden and Thomas testified that, at or about the date thereof, they saw Admiral Porter sign it, and that thereupon, at his request, they signed their names to it as witnesses, and that, when that paper was so signed, Wilkes, whose name appears as one of the witnesses, was not present. Wilkes testified
It was agreed in open court, by counsel for all of the parties, that the paper referred to had in fact been executed by Admiral Porter, and attested by the witnesses, J. M. Alden and Chauncey Thomas, before Wilkes signed it.
The statute of Maryland relating to wills, which is in force in this District, provides as follows:
“All devises and bequests of any lands or tenements, devisable by law, shall be in writing and signed by the party so devising the same, or by some other person in his presence and by his express direction, and shall be attested and subscribed, in the presence of the said testator, by three or more credible witnesses, or else they shall be utterly void and of none effect.” Act of 1798, Ch. 101, subch. 1, section 4.
What is it that this statute requires to be attested? Is it the fact that the testator signed the paper in question; or is it the two facts that he.not only signed that paper but signed it as his will? In examining this question it is proper to refer as well to English as to American authorities, for the provision above cited was copied from section 5, of the statute of Charles II. Ch. 3, commonly known as the Statute of Frauds.
In Wyndham vs. Chetwynd, 1 J. Burr, 414 (1757) Dord Mansfield said: ‘ ‘ This whole clause, which introduces a positive solemnity to be observed, not by thé learned only, but by
Rater, in the same case, Rord Mansfield said: “The legislature meant only to guard against fraud by a solemn attestation, which they thought would soon be universally known, and might very easily be complied with. * * * Suppose the subscribing witnesses honest; how little need they know? They do not know the contents; they need not be together; they need not see the testator sign; (if he acknowledge his hand it is sufficient); they need not know it to be a will; if he delivers it as a deed it is sufficient.”
Bond vs. Seawell, 3 Burr, 1773 (A. D. 1765), was a case reserved at nisi prius, and the question was upon the due execution of the will of Sir Thomas Chitty. As to two of the witnesses, it was proved that the testator showed them the codicil and the last sheet of the will (the latter being written by him on two separate sheets); that he then sealed before them both this last sheet of the will and the codicil, took
It is proper to remark that, in disposing of this case, Ford Mansfield informed the bar that he had had a conference with all of the judges, except Mr. Baron Adams, who was out of town. Although they only suggested certain doubts, it is manifest that he had their concurrence in this view. This case is, therefore, of very weighty authority.
The case most commonly referred to by American courts is White vs. Trustees of British Museum, 6 Bing., 309. We shall state it somewhat at length, because it has been the subject-of conflicting interpretations. That case was heard on a special verdict, which found that the paper in question was in the handwriting of the testator; that two of the witnesses signed it without seeing his signature, and were not informed by him of the nature of the paper, or of the purpose for which' they were requested to sign it; that at a later date a third witness signed the paper, and was at the same time informed by the testator that it was his will.
Tindal, C. J., said: “It has been held, in so many cases, that it must now be taken to be settled law, that it is unnecessary for the testator actually to sign the will in the presence of the three witnesses who subscribe the same; but that any acknowledgment before the witnesses that it is his signature or any declaration that it is his will, is equivalent to an actual signature in their presence, and makes the attestation
“The question, however, appears to us to be: Whether, upon this special verdict, the finding of the jury establishes, although not an acknowledgment in words, yet an acknowledgment in fact, by the devisor to the subscribing witnesses, that the instrument was his will? for if by what the devisor has done, he must, in common understanding and reasonable construction, be taken to have acknowledged the instrument to be his will, we think the attestation of the will must be considered as complete. * * *
“In the execution of wills, as well as that of deeds, the maxim will hold good 1non quod dictum sed quod factum est, inspicitur.’ Now, in the first place, there is no doubt upon the identity of the instrument. The paper in question is the very paper writing which was produced by the testator to the three witnesses. * * * In the next place, it appears from the special verdict, that the devisor was conscious himself that the instrument was his will. For the verdict finds that he was of sound disposing mind, both at the time he signed it himself, and also at the time when the witnesses subscribed their names. But, further, it appears from the inspection of the instrument set out in the special verdict, the signature of the three names could not possibly enure to charge themselves, or any other person, and could not have been done for any other purpose whatever than simply to make them witnesses to the will. And lastly, it appears from the same inspection, that immediately above the names of the witnesses, there was written in the handwriting of the testator, these words: ‘In the presence of us as witnesses thereto, ’ which do amount to a clear and unequivocal indication of the testator’s intention that they should be witnesses to his will.
*501 “When, therefore, we find the testator knew this instrument to be his will-, that he produced it to the three persons and asked them to sign the same; that he intended them to sign it as witnesses; that they subscribed their names in his presence, and returned the same identical instrument to him, we think the testator did acknowledge in fact, though not in words, to the three witnesses that the will was his. For, whatever might have been the donbt upon the true construction of the statute, if the case were res integra, yet as the law is now fully settled, that the testator need not sign his name in the presence of the witnesses, but that a bare acknowledgment of his handwriting is a sufficient signature to make their attestation and subscription good within the statute, though such acknowledgment conveys no intimation whatever, or means of knowledge, either of the nature of the instrument, or the object of the signing; we think the facts of the present case place the testator and the witnesses in the same situation as they stood where such oral acknowledgment of signature has been made, and we do, therefore, upon' the principle of these decisions, hold the execution of the will in question to be good within the statute.”
We have said that this opinion has been the subject of conflicting interpretations. It seems to have been understood by some courts to mean that the testator must, either in words or in effect, acknowledge, not only that the paper in question was his act, but that it was a will. Some expressions in it may, if considered separately, suggest such a meaning; for example, the following: “ The question appears to us to be, whether, upon this special verdict, the finding of the jury establishes, although not an acknowledgment in words, yet an acknowledgment in fact, by the devisor to the subscribing witnesses, that the instrument was his will.” But these words are not to be considered separately; they must be read with the context; and the concluding paragraph of the opinion was to the effect that an acknowledgment of what the testator knew to be his will was such an acknowledgment that it was his will as would satisfy the statute, although it gave no intimation to the witnesses of the nature of the instrument.
In relation to the point in question, the statute of Connecticut is the same as the act of 29 Chas. II. The Supreme Court of that State said, in Canada’s Appeal, 47 Conn., 450 (460): “The charge declares the law to be, that the signature of a testator to a will is not duly attested unless, at the time of attestation, the attesting witness knows that the instrument is a will. This attributes too much meaning to the word ‘attestation; ’ more than has been given to it by courts which have been called upon to define it where used in similar statutes.” 'For a true interpretation of that word, the court referred to Wyndham vs. Chetwynd, supra; Wright vs.
The facts in Welty vs Welty, Exr , 8 Md., 15, did not raise the question whether the testator must acknowledge that the paper attested was a will, but we understand the reference of the court to the cases above cited to express approval.
This line-of cases fully justifies the propriety of some general observations of Rord Mansfield in Wyndham vs. Chetwynd. After stating that the legislature meant only to' guard against fraud, and that, in his experience, “many more fair wills have been overturned for want of the form, than fraudulent have been prevented by introducing it,” he said: “For these and many more reasons, it is clear that judges should lean against objections to the formality. They have always done so, in every construction upon the words of the statute; a fortiori ought they to do so if that system would spread a snare, in which many honest wills must be entangled, and be no preservative against fraud.”
We accept as authoritative the line of cases which we have cited. They show that, within the meaning of the statute of 29 Charles II, attestation is properly made, either when the witness has seen the testator sign the instrument, or has heard him, after it has been signed, acknowledge that the act was his. They show also that this acknowledgment may be conveyed either by words or by acts which indicate to the witness that he is called upon to act in the capacity of witness, and to attest something which is treated by the testator as his act. They show, too, that it is not necessary to the effectiveness of this acknowledgment or of the attestation, that the witness should know the nature of the instrument produced and submitted for his attestation. It is pointed out by Chief Justice Tindal, as a significant circumstance, that
All of the essential facts commented upon by Chief Justice Tindal in that case appear in the case before us. The testator laid before the witness, Wilkes, a paper bearing his own signature and the word “witnesses.” This could have but one meaning. He thereby conveyed an acknowledgment that the instrument produced was his act, and along with this acknowledgment, a desire that the witness should be witness to that fact. We are of opinion that the transaction before us complied with every requirement stated in White vs. The Trustees of the British Museum, and therefore was a compliance with the Statute of 29 Charles II, Ch. 3.
We hold that the codicil in question was properly executed and attested as a will devising real property.