13 Pa. 400 | Pa. | 1850
Lead Opinion
The opinion of the court was delivered by
If the execution of tMs will stood on the act of .1833, it would be imperfect; for though there was proof by one witness, and, on the principle of Greenough vs. Greenough, the attestation of another might stand for proof by him that the name actually signed was written by the testator’s direction, it is not the name of the testator himself; and that was a part of the signature which could not be supplied with the name of a stranger accidentally substituted for it. It may have been hard that a blunder of the penman should deprive a testator of his right to
Rut it is unnecessary to express a positive opinion on that point, though the case was ruled on it; for where, as here, a mark is made, the act of 1848 dispenses with the name as an essential part of the signature, just as it dispenses with the mark where the testator’s name is written by Ms authority. “ Every last will and testament,” it declares,” “ heretofore made, or hereafter to be made, excepting such as may have been finally adjudicated prior to the passage of this act, to wMch the testator’s name is subscribed by his direction or authority, OR to wMch the testator has made Ms mark, shall be deemed, and taken to be valid in all respects.” It is thus distinctly declared that the name without the mark, or the mark without the name, may constitute the signature. The mark could gain no force from the attachment of the name to it without the testator’s authority; and his name attached with his authority, would be sufficient without the mark. Of what account is it that the impertinent name of a stranger, happens to be attached to the pertinent mark of the testator ? As it could not corroborate, it ought not to weaken it. The name is indeed an index to the mark; but it does not conclusively point to the marksman : he may be individuated by proof aliunde. It is ancillary to the mark, but by no means inseparable from, or indispensable to it. At the common law, it is the marksman’s touch, not the subscription of the name in connexion with it, which gives life to the instrument. Where, however, there is no mark or touch, the subscription of the name by direction of the party and in his presence becomes, by the principle of Hart vs. Struthers, 1 Penn. R. 291, Ms immediate act. The statute of 1833, inverted the common law principle so far as to exclude the mark, where there was one, from effect as an integrant part of the signature, and to require
So far as the statute of 1848 would divest titles it has already been declared unconstitutional; but though this will was made before it, the death was after it; and, as no estate was vested in the testator’s life time, the case is within the remedial provision. The persons who have been disappointed by it, have no constitutional right to object to it.
Judgment reversed and venire de novo awarded.
Concurrence Opinion
concurred in the judgment, but dissented from the observations of the C. J., on the subject of the mistake made in writing the testator’s name. (See his reasons filed.)