Miller v. Miller

51 So. 210 | Miss. | 1910

' Whitfield, O. J.,

delivered the oj» inion of the court.

The testimony in this case shows clearly that the testator exhibited his will to Oox and Phillips; two of the subscribing witnesses, stating to them that this was his will, that the signature to it was his signature, and that he had signed it. The testimony also clearly shows that M. E. Davis,‘another subscribing witness, .wrote the signature of Calvin Miller for him, and ■at bis direction, and tbat tbis was tbe signature adopted and acknowledged by Calvin Miller wben be stated tbe above facts to Cox and Phillips. Tbis was a good attestation of bis signature. It is not essential to a valid attestation of tbe testator’s signature, under our statute, tbat tbe subscribing witnesses shall see tbe testator sign tbe will. It is enough if be shall produce tbe .will, declare it to be bis will, and state tbat tbe signature appended to tbe will is bis, and tbat be wrote it. Tbe testimony offered to show declarations of the testator, to tbe effect tbat be would not make a will, was clearly incompetent, as mere hearsay. Wigmore on Evidence, vol. 3, § 1736.

There is nothing to tbe contrary of what .we have said on either of these points in Sheehan v. Kearney, 82 Miss. 688, 21 South. 41, 35 L. R. A. 102. We held in tbat opinion — cited with approval by Wigmore on Evidence, in bis discussion of tbe subject (3 Wig. on Evidence, p. 2244) — that the declarations of a testator as to bis intentions with respect to the disposition of bis property, made before or after tbe execution of tbe will, or at tbe time of tbe execution of tbe will, are competent, upon well-settled principles, on tbe issue of undue influence and the issue' of insanity. Those are not tbe issues in tbis case.

Tbe decree 'is affirmed.