218 Mass. 471 | Mass. | 1914
This appeal from a decree of the Probate Court comes before us upon a report by a single justice of this court
A facsimile of the will is made part of the report. The will was written on ordinary foolscap paper, that is to say, on paper folded at the top and with lines ruled upon it. The whole paper is in the handwriting of the deceased. A copy of the ending of it is set forth in the footnote.
According to Mrs. Marshall’s testimony it appeared that a few days before she and her husband signed the instrument here in question the deceased had asked her if she and her husband would sign his will; that later on, he came into their-kitchen and took the will out of his pocket; that “it was folded up;” that as he turned it over she saw handwriting on it and recognized the writing as the writing of the deceased, but could not “recognize any word; ” that they were sitting on opposite sides of a table, and the deceased “reached” the folded paper across to her and she signed; that he held on to the paper while she signed; that it was folded “just so I could sign comfortably,” and so that she saw nothing above where she put her name. She saw no signature below the edge made by the folding of the paper. She further testified that she then got up out of the chair in which she sat while signing her name; that her husband sat down and signed his name, and that the deceased held on to the paper folded as above described until both had signed. He then blotted the signatures, put the paper in his pocket and went away. She further testified that when she caught sight of the writing while the paper was being turned over she did not distinguish any words or see any signature. This testimony was corroborated by that of her husband. He was explicit in his testimony that no change was made in the arrangement of the paper while his wife and he signed, and that the deceased did not point to any signature in the will. In his testimony he said, “I don’t remember of seeing any signature.” It should be added that after his death the instrument now presented as the will of the deceased was found in his box in a safety deposit vault.
This case, therefore, presents the question whether a will is duly attested when the signature of the deceased is hidden from the witnesses when they attest and subscribe the will.
In Chase v. Kittredge, 11 Allen, 49, 63, a statement was made of the meaning of the word “attested” in what is now R. L. c. 135, § 1. The decision in Chase v. Kittredge was that a subscribing witness cannot sign before the testator has signed. In making that decision Mr. Justice Gray delivered an exhaustive opinion upon the acts required by statute to make a valid will. In the course of that opinion he said: “The statute not only requires them (the witnesses) to attest, but to subscribe. It is not sufficient for the witnesses to be called upon to witness the testator’s signature, or to stand by while he makes or acknowledges it, and be prepared to testify afterwards to his sanity and due execution of the instrument, but they must subscribe. This subscription is the evidence of their previous attestation, and to preserve the proof of that attestation in case of their death or absence when after the testator’s death the will shall be presented for probate. It is as difficult to see how they can subscribe in proof of their attestation before they have attested, as it is to see how they can attest before the signature of the testator has made it his written will.” Chief Justice Robertson gave a similar definition of the word “attest” in Swift v. Wiley, 1 B. Mon. 114, 117. He said: “To attest the publication of a paper as a last will, and to subscribe to that paper the names of the witnesses, are very different things, and are required for obviously distinct and
If, however, the matter were res integra, the conclusion reached in the cases cited above would be the conclusion which would have to be reached by a due construction of the statute of wills. R. L. c. 135, § 1. The statute requires that the deceased shall be a person of full age and sound mind, that his will shall be reduced to writing, and that the writing shall be signed by him (or by a person in his presence and by his express direction), and that it shall be “attested and subscribed in his presence by three or more competent witnesses.” The subscription of the paper by the witnesses identifies the instrument. What then does the statute mean when it requires in addition that the instrument shall be “attested” by the witnesses? To attest means to bear witness. When the statute requires that the witnesses shall attest, what is it that they are to bear witness to? Plainly to those facts to which they have to testify when put on the stand as attesting witnesses, namely, that those things existed and were done which the statute requires must exist and be done to make the writing a valid will. The rule that the will must be proved by the attesting witnesses, if they can be produced (as to which see Chase v. Lincoln, 3 Mass. 236; O’Connell v. Dow, 182 Mass. 541), is founded on this assumption. In Chase v. Lincoln, ubi supra, this court said at page 237: “The Legislature, in requiring three subscribing witnesses to a will, did not contemplate the mere formality of signing their names. An idiot might do this. These witnesses are placed round the testator to ascertain and judge of his capacity, and the heir has a right to insist on the testimony of all the three witnesses, to be given to the jury. They must therefore all be produced, if living, and under the power of the court.”;
Taken literally, R. L. c. 135, § 1, requires that the instrument
It may be taken to be settled, therefore, first, that the attestation required by R. L. c. 135, § 1, consists in the witnesses seeing that those things exist and are done which the statute requires must exist or be done to make the written instrument in law the will of the deceased; second, that although the act required by R. L. c. 135, § 1, is that the will shall be “signed” by the deceased, yet as matter of construction an acknowledgment by the deceased of a previous signature, made in the presence of the attesting witnesses, is equivalent to signing in their presence.
With these two propositions established we come to the question presented in the case at bar, namely: Is there an acknowledgment by the deceased of a previous signature where the signa
Apart from authority it is manifest that a person does not acknowledge a signature to be his where no signature can be seen. All that he does in such a case is to acknowledge the fact that he has signed. While an acknowledgment of a signature then exhibited to the witnesses is equivalent to signing in their presence, an acknowledgment to the witnesses qf the fact that a signature has been made is not the equivalent of signing in their presence. It follows that where the signature is hidden there is not the equivalent of the statutory requirement that
.It is true that Hudson v. Parker, 1 Rob. (Eccl.) 14, and Blake v. Blake, 7 P. D. 102, were decided under St. 1 Vict. c. 26, § 9,
It is the contention of the proponent that however this question might have been decided if the matter had been res integra, the point is concluded by the case of Dewey v. Dewey, 1 Met. 349. It will be necessary to examine that case with some particularity. The instrument propounded in that case as the will of the deceased (Timothy Dewey by name) was subscribed by Medad Fowler, Josiah Fowler and Silas Root as witnesses. There was no question as to the sufficiency of the attestation on the part of Silas Root. The question presented in that case was that of the sufficiency of the attestation by Medad and Josiah Fowler. Medad Fowler testified that his name, which was upon the will, “appeared to be his handwriting, but that he had ‘no recollection anything about it.’” His son, Josiah Fowler, testified that the deceased asked him and his father to sign a paper which he called his will, “and not to read it.” He “thought he did not see . . . Timothy sign it; but the deponent and his father signed it as witnesses, "without reading it. Deponent did not recollect seeing a word of writing on the paper, which he ‘thought,’ at the time, was not right, or as it should be.’ ” At the trial, after
There was no suggestion that the signature of the deceased was hidden from Médad and Josiah Fowler when they subscribed the will as witnesses. The case at bar, therefore, is not concluded by the decision made in Dewey v. Dewey. Not only is that true, but there is nothing in the opinion which is decisive of this case. When Mr. Justice Dewey said that the deceased “by his acts, if not by his declarations, sufficiently recognized and acknowledged his own execution of” the will,'he must be taken to have meant that the deceased, by his acts, if not by his declarations, sufficiently recognized and acknowledged the previous signature made by him. In an earlier part of his opinion Mr. Justice Dewey had said: “The term ‘attested,’ as used in the statute,- does not import that it is requisite that the witnesses should see the very act of signing by the testator. The acknowledgment by the testator, that the name signed to the instrument is his, accompanied with a request that the person should attest as a witness, is clearly sufficient. Stonehouse v. Evelyn, 3. P. Wms. 252, 254. Grayson v. Atkinson, 2 Ves. Sen. 454, 456. So a declaration by a testator, before the witnesses, that the paper is his will, is sufficient to authorize their attestation to it, and to make it a good will.” A declaration by the testator that a paper bearing his signature then exhibited to the witnesses is his will is a sufficient acknowledgment of the signature to authorize the attestation of the will. That was the case to which Mr. Justice Dewey’s statement was addressed. Whether such a declaration will be sufficient if the signature was hidden from the witnesses was not before the court in Dewey v. Dewey; and what was said there cannot be taken to have been said with reference to such a case.
Cases like Ela v. Edwards, 16 Gray, 91, where it is held that a will can be allowed on proof of the authenticity of the signatures of the deceased and of the attesting witnesses when these witnesses are all dead or for any other reason cannot be produced, do not conflict with the conclusion reached by us in the case at bar. These are not cases holding that the ultimate fact to be proved is not a signing by the deceased or the acknowledgment by him of a previous signature then exhibited to the witnesses. They are cases deciding how that fact may be proved when the attesting witnesses are dead, or for other reasons cannot testify; and they decide that in such cases the ultimate fact to be proved may be proved by circumstantial evidence aided by the doctrine “omnia rite esse acta praesumuntur.”
Another case relied upon by the proponent is Meads v. Earle, 205 Mass. 553. That case came before this court upon a report from which it appeared that the instrument propounded as her will was written by the deceased (who was a school teacher) without advice. It was not signed in the usual place between the attestation clause and the in testimonium clause, but the single justice found as a fact that the deceased, when she wrote her name at the head of the blank, intended that to be her signature to the will. It was also found by the single justice that the deceased “by words and conduct acknowledged and declared the will before the subscribing witnesses and that the subscribing witnesses signed the attestation clause in her presence at her request and upon her acknowledgment and declaration that it was her will, although neither of them saw her signature.” In the opinion of the court in that case it was said: “The will was therefore properly signed. Lemayne v. Stanley, 3 Lev. 1. And the signature was properly attested. Dewey v. Dewey, 1 Met. 349, and cases cited. Adams v. Field, 21 Vt. 256.” Nothing further was said as to the validity of the attestation. Whether there was or was not a valid attestation of that will does not seem to have been an issue which was tried before the single justice, and it is certain,
The proponent also has relied upon Gould v. Chicago Theological Seminary, 189 Ill. 282. That was a case where the attestation was held valid although the previous signature of the deceased was hidden from the subscribing witnesses when the deceased asked them to sign, saying that the paper was his will. But the Illinois act (Ill. Rev. Sts. c. 148, § 2) does not provide that the testator shall acknowledge a previous signature. The Illinois act provides that the attesting witnesses must declare on oath “that they were present and saw the testator or testatrix sign said will, testament or codicil, in their presence, or acknowledged the same to be his or her act and deed.” It was held as matter of construction of that statute that what is to be acknowledged by the deceased is that the paper signed by the subscribing witnesses is his will.
It is hard to understand what the attestation of a will consists in if the contention of the proponent is right. The subscription of the witnesses identifies the paper. But the statute in requiring that the will must be “attested” means that something more must be done than the identification of the paper by the subscribing of the witnesses. It cannot be that the requirement that the will should be “attested” means that the testator shall inform the witnesses that the paper is his will. The contrary is settled law, at least in this Commonwealth. Hogan v. Grosvenor, 10 Met. 54. Osborn v. Cook, 11 Cush. 532. Tilden v. Tilden, 13 Gray, 110. If the subscribing witnesses need not know that the paper subscribed by them is the will of the deceased it is hard to understand what is required by the word “attested” in addition to the word “subscribed,” if the definition of “attested” given in Chase v. Kittredge and the other cases cited above is not correct. On this point the argument of the proponent has given us no aid.
It follows that when the deceased hides from the subscribing witnesses the signature which is upon the instrument previously signed by him and goes no further than to ask the subscribing witnesses to sign the paper placed before them, even if that request be accompanied by a statement that the paper is his will, there is no acknowledgment by the deceased of his signature and so no valid attestation of his signature by the subscribing witnesses. All that is acknowledged by the deceased in that case is that the paper is his will. In such a case there is no acknowledgment by the deceased that the signature on the paper (if there be a signature upon it) is his signature. We are of opinion that the charge of Chief Justice Shaw in Hall v. Hall, 17 Pick. 373, set forth above, and the decisions made in Hudson v. Parker, 1 Rob. (Eccl.) 14, Blake v. Blake, 7 P. D. 102, In re Will of Mackay, 110 N. Y. 611, In re Laudy, 148 N. Y. 403, Tobin v. Haack, 79 Minn. 101, and Richardson v. Orth, 49 Ore. 252, are correct. It follows that there was no valid attestation of the will of Thomas Nunn in the case at bar.
It is undoubtedly the fact that Thomas Nunn thought that he had made his will, and it is a matter of regret, under these circumstances, to have to come to the conclusion that the paper which he signed, thinking that it was his will, is not in law his will. But that regret arises in every case in which a deceased person has failed to comply with those requirements, which, as a matter of public policy, the Legislature has thought proper to exact in case a person wishes to dispose of his property by will. The Legislature might have provided (as it has been held that the Legislature of Illinois did provide) that if the paper was signed by the deceased it would be enough if he acknowledged it to be his will in the presence of the persons who signed the paper as witnesses. But that is not the provision which was adopted in R. L. c. 135, § 1, and the earlier acts of which this is the re-enactment.
It follows that by the terms of the report the decree of the Probate Court must be affirmed. It is
So ordered.
Braley, J.
“In. testimony whereof I hereunto set my hand and in the presence of three witnesses declare this to be my last will and testament, this first day of March a.d. 1908 Thomas Nunn of Malden in the said Commonwealth.
“On this first day of March 1908. Thomas Nunn of Malden in said Commonwealth, sign the foregoing instrument in our presence, declaring it to be his last will, and as witnesses thereof we three at his request and in his presence hereto subscribe our names:
Signed. Thomas Nunn
Mrs. Mary E. Marshall.
John Marshall.
Thomas G. Andrews . Thomas Nunn.”
St. 29 Car. II, c. 3, § 5, is as follows: “ From and after the said four and twentieth day of June all devises and bequests of any lands or tenements, devisable either by force of the Statute of Wills, or by this statute, or by force of the custom of Kent, or the custom of any borough, or any other particular custom, shall be in writing, and signed by the party so devising the same, or by some other person in his presence and by his express directions, and shall be attested and subscribed in the presence of the said devisor by three or four credible witnesses, or else they shall be utterly void and of none effect.”
St. 1 Viet. c. 26, § 9, is as follows: “And be it further enacted, That no will shall be valid unless it shall be in writing and executed in manner hereinafter mentioned; (that is to say,) it shall be signed at the foot or end thereof by the testator, or by some other person in his presence and by his direction; and such signature shall be made or acknowledged by the testator in the presence of two or more witnesses present at the same time, and such witnesses shall attest and shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary.”