Main v. Ryder

| Pa. | May 7, 1877

Mr. Justice Mercur.

delivered the opinion of the court,

These two cases were argued together. They involve the same question. The contention relates to the will of Daniel Miner.' All the assignments of error present substantially these questions, involving its validity:—

1. The manner of its execution.

2. The mental capacity of the testator.

3. The influences under which it was executed.

We will first consider the manner of its execution. Under the Act of 1833, it was held that a will signed by the testator putting his mark to it, was not properly executed. To cure this ruling, which was questioned in Vernon v. Kirk, 6 Casey 218, the Act of 27th January 1848, Pamph. L. 16, was passed. It declares that every last will and testament “ to which the testator hath made his mark or cross, shall be deemed and taken to be valid in all respects, provided the other requisites under existing laws are complied with.”

The will of Daniel Miner bears date the 26th December 1872. It appears to have been executed by the testator making his mark or cross at the end thereof. It has two subscribing witnesses, and is wholly regular on its face.

It is contended that the Act of 1848 applies only to cases where the testator is unable to write his name by reason of want of. education, and does not excuse the absence of the signature of one who is able to write. We discover nothing in the act 'sustaining that view. It makes no mention of insufficient education or of physical inability. It declares that form of execution as sufficient in all cases. The manifest object of the act is to permit a will to be signed as any other written instrument may be signed. Hence in Vandruff et al. v. Rinehart, 5 Casey 232, it was held that if one is unable from palsy or other cause, to make his signature or mark to his will, another person may steady his hand and aid him in so doing. If so done by the assistance of another it is the testator’s own act. So in Cozzens’s Will, 11 P. F. Smith 196, the testator was paralyzed, and said he was unable to write, but would put his mark to the will. He was raised in bed; a pen was put into his hand, which was held by another while he made his mark. This was held to be a valid execution of the will.

In the case we are now considering, it appears by the evidence of Thorpe, who drew the will, that he handed it to the testator, who was lying in bed, to sign. The latter said, “ You sign it.” Case or Stanton said, “ Yes, he can make his mark just as well.” Case and Stanton each testified substantially corroborating Thorpe, and added that Miner made the further remark that he had written his name, but did not know as he could do it then, or did not know but he' could do it again. Thereupon Thorpe wrote Miner’s name, not in a manner indicating that it was to stand as Miner’s fully executed signature, but preparatory only to his making his mark. Thorpe

his

wrote it “ Daniel Miner.”

mark

In that portion of the charge covered by the eighth assignment the court said, “we therefore charge you that if Thorpe wrote Daniel Miner’s name to1 the will in Miner’s presence and by his express directions, and Miner made the attempt to make his mark, but failed to complete the mark, or to make it in the manner required by the statute, still the will is sufficiently executed if these facts are proved by two witnesses, who Avere present at the time, although Miner when he directed his name to be signed intended to make his mark also, and Thorpe, when he wrote the name, intended that Miner should make his mark.”

This, we think, Avas clearly error. It assumes that although the testator directed his name to be written Avith the view of adding his mark, and thus making his signature, yet the will is completely executed before the mark is made. This cannot be so. It gives to an unexecuted intention the same effect as if fully executed. It gives to the statute a construction not sanctioned by its letter or its spirit. It is undoubtedly true the statute does provide, if the testator’s name is subscribed by his direction and authority, it is a valid execution of the will. That, hoAvever, is when the testator has directed his name to be written as his complete signature; If' so directed and intended, it becomes sufficient in itself. In such case the testator Avould not have intended to make any signature with his own hand, and none would be required. The learned judge holds the will may be sufficiently executed, although the testator failed to make his mark “in the manner required by the statute,” and when neither the testator nor the Scrivener had done any act, which either intended as a full execution of the will, and when the will would show on its face that it was not fully executed.

This error, however, was harmless in its consequences. It is shown by the testimony of four witnesses, who are uncontradicted, that the testator did make his mark. They all testify that his hand was on the pen when his mark was made, and he thus assisted in making it. As then the plaintiff in error sustained no injury by this instruction we will not reverse therefor: Phelin v. Kenderdine, 8 Harris 354.

2. The evidence in regard to mental incapacity was very slight. It was fairly submitted to the jury, and substantially in the very language often used by this court. On this branch of the case, the learned judge is fully sustained by Thompson v. Kyner, 15 P. F. Smith 368, and the numerous cases therein cited.

3. The fact that the testator lived with a woman to whom he was not legally married, and that she and their illegitimate offspring were the devisees of much of his property, are urged as creating a presumption in law that the will was executed under improper influences. The case of Dean et al. v. Negley et al. is cited to support this view. The opinion of the judge in that case expressly declares that the court does not decide such relations create a presumption of law of undue influence; but leaves the effect thereof as a question of fact for the jury. To the same effect is the case of Rudy v. Ulrich et al., 19 P. F. Smith 177. No clearly defined weight can be given to such testimony. Much must depend on the particular circumstances of each case. It is an element undoubtedly to be considered.

It appears that Miner had been entirely separated from his lawful wife and children for nearly thirty-five years. So far as it appears .none of them had met him in all that time. She had not sought any reconciliation of her marital relations, nor they of their filial relations. They all resided in another state. She died in April 1869. For more than twenty-six years the testator and the woman named in his will as his wife, had lived and cohabited together as husband and wife. During all that time they so recognised each other. She had borne him several children. To them he also devised a portion of his estate. A separation for more than thirty years from his legitimate children naturally weakened his parental affection towards them. It needed no special effort on the part of his other family, with which he had lived more than a quarter of a century, to make them the objects of his bounty. The court fairly submitted the fact of his illicit associations to the jury to consider in determining the question of undue influence. On the whole record we diseovér no sufficient cause for reversal, therefore,

Judgment affirmed in each case.