14 Mo. 611 | Mo. | 1851
delivered the opinion of the court.
This was a proceeding in the circuit court of Monroe county, in order to have a certain instrument of writing established as the last will of James McGee. The county court had previously to the commencement of this proceeding, refused to admit the same to probate.
The testimony appearing on the record is conflicting and unsatisfactory in relation to the sanity of the testator at the time of making the supposed will- We are not disposed however to find fault with the verdict of the jury — the fact of the soundness and capacity of mind of the said James McGee was fairly submitted to the jury by instructions, and their verdict will not be disturbed by the court.
The main question in this case arises from the manner in which the will was executed. The testimony of the subscribing witness, Barnett, clearly shows that the name of the testator was written by his wife; that Mrs. McGee signad her husband’s name to the will; and then carried it to him, and that he dotted over his own name — the witness says
The record shows nothing more than a mere subscription of the name, no mark, no dot- — the testator’s name is written as if he had written it himself.
Upon this evidence, the court was asked to instruct the jury as follows’,
“6. That if the jury find from the evidence in this case, that said paper purporting to be the will of said James McGee, was signed for him by another person, they will find for the defendants, unless, they further find that the person so signing the name of the said James McGee, subscribed his or her name, as a witness, to said paper purporting to be a will, and also state that he or she subscribed the said James McGee’s name, at his request.
7. Unless the jury believe from the evidence that the writing offered as the will oi James McGee, was signed by him, as his last will and testament, or that he had it signed by some other person by his direction and in his presence, and that such person signing by his direction, subscribed his or her own name as a witness to the said writing, stating that he or she subscribed the testator’s name, at his, testator’s request, said writing is not duly signed and attested as a will according to the law of this State.” The words following were added by the court: “But the will is not thereby void, but voidable .only.”
The 5th section of the Statute concerning wills, declares that “every person who shall sign the testator’s name to any will by his direction, shall subscribe his own name as a witness to such will, and state, that he subscribed the testator’s name at his request.” The instructions the court refused to give as set forth. It gave the 7th instruction, with the addition thereto as above. It was under this statute that the above instructions were asked.
It becomes necessary therefore for this court to state our opinion in regard to this statute.
We consider this section of the act concerning wills as mandatory, not merely directory; and that the failure of the person v?ho subscribes the testator’s name by his direction to any such will to subscribe his name thereto as a witness, stating that he subscribed the testator’s name at his request, is a fatal defect in the execution of a will.
Under.this view of the law, then, the court below erred in refusing to give the instruction above set forth. The seventh instruction should have been given without the addition thereto by the court, which addition renders the instruction unintelligible. We know nothing about “voidable wills.”