Northcutt v. Northcutt

20 Mo. 266 | Mo. | 1855

Scott, Judge,

delivered the opinion of the court.

1. The cases which have fallen under our notice, in which it has been held that the making of a mark was-a sufficient signing under the statute of wills, (29 Chas. II,) of which ours is a copy in this respect, are those in which the will was authenticated by the mark of the testator alone without his name. (5 John. 144.) In the matter of Field, (7 Eng. Ecclesiastic Rep. 576.) In the matter of Bryce, id. 128. Baker v. Dening, 35 E. C. L. Rep. 335.) Admitting that the making of a cross is a sufficient signing within the statute, yet it should appear that the testator relied on that act alone as the means of authentication. If to the cross he has superadded his name, or required it to be done, it would appear that he did not rely on the cross for the authentication of his will. If the testator’s name is signed to his will by another, at his request, it is difficult to perceive why the will should not then be attested, as is required by the fifth section of the act concerning wills. We know that the mark alone is not often used as a means of authenticating instruments. It is almost invariably used in connection with the written name of the marksman. Its object is, to show that the name written is not subscribed by the person making the mark, but by some other person for him. We do not recollect an instance among us in which a mark alone was used as a signature without the name of the marksman.

The words of the act are, 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. Here, the testator’s name is subscribed to his will by another, at his request. How, then, can we say that he designed authenticating his will by the mark afterwards made ? If the making of a mark, when there is a signature of the name, should be deemed a sufficient authentication of a will, nothing would be easier than to avoid the requisition of the statute, in every case of a signature of the name of the testator, by the direction of another. It would only be necessary to make a cross, a thing easy to be done and difficult to be detected, and the provision of the statute would be defeated.

This case is within the very words of the statute, and there is nothing showing that it is not also within the reason of it, and, as the person who subscribed the...testator’s name, did not state in his attestation of the will, that he subscribed the testator’s name at his request, the will is void.

Judge Ryland concurring,

the judgment will be affirmed.