55 Ind. 402 | Ind. | 1876
This action was brought by the appellee, the widow of Hyatt C. Ransom, deceased, against the appellants, to contest the validity and resist the pro
The appellants make no question, here, except that arising on the motion for a new trial.
The supposed will need not be set out, as the sole question presented is, whether it was duly executed. It was signed and attested as follows:
“ Signed at Franklin, Tenn., March 11th, 1863.
“ H. C. Ransom,
“ "Witness, “ Captain A. Q. M., U. S." Army.”
“ C. F. Wood.”
It was admitted upon the trial ot the cause, that Charles F. Wood, whose name appears as C. F. Wood, under the word “witness” in the paper, signed the paper, in the presence of Ransom, at his request, on March 11th, 1863, at Franklin, Tennessee; that, at the time of executing the writing, Ransom declared the same to be his will; that he was then and there of sound mind and competent to devise his property, and not under coercion; that Wood signed as such witness, after Ransom signed, and that the writing was all in the handwriting of said Hyatt C. Ransom.
On the back of the will was the following endorsement, viz.:
“ Flint, Mich., Oct. 21st, 1867.
“ The within is the basis on which I desire to have my affairs disposed of, should no other will be made by me.
“ H. C. Ransom,
“Witness, “Br’v’t. Lt. Col. and Q. M.”
“ F. F. Hyatt.”
As F. F. Hyatt was the only witness who explained the endorsement on the back of the will, we set his evidence out in full. He said, in answer, as we suppose, to questions propounded:
On cross-examination, he said;
It is shown by the evidence, and, indeed, conceded by counsel on each side of the case, that the deceased, at the time of his death, was domiciled in Indiana. It is therefore properly assumed by the respective counsel, that the law of Indiana, alone, must be applied in determining whether the supposed will was duly executed.
Our statute provides that “No will except a nuncupative will shall affect any estate, unless it be in writing, signed by the testator, or by some one in his presence, with his consent, and attested and subscribed in his presence by two or more competent witnessesetc. 2 R. S. 1876, p. 575, sec. 18.
The statute requires that a will shall be attested and subscribed, in the presence of the testator, by at least two competent witnesses; and the question here is, whether the will was attested and subscribed as required.
Assuming that E. E. Hyatt can he regarded as having attested and subscribed- the will as a witness thereto, then the attestation and subscription of the two witnesses were separated by an interval of time of over four years and a half, and by a space of several hundred miles. We are aware that there are many cases holding that the witnesses need not attest at the same time. But this has been changed for the better in England, by a statute which requires that the will shall be signed by the testator, in the presence of two witnesses, at one time. See 1 Greenl. Ev., sec. 272 and note 5.
It is said that “ The attesting witnesses are regarded in the law as persons placed round the testator, in order that no fraud may be practised upon him in the execution
But we are of opinion that E. E. Hyatt can izz no sense he regarded as having subscribed the supposed will.
He subscribed the endorsement on the back of the will, and nothing more. He seemed to he anxious, and, for aught that appears, properly so, that the will should he perfected. He had told the deceased that perhaps the will would not he valid with but one witness. Whezz he put his name to the endorsemezit he thought that cured the defect, but afterwards, at St. Paul, he told the deceased that he feared it was imperfect; and still later he wrote the deceased at Uew Orleans, requesting him to make a will.
When the witness suggested to the deceased that perhaps the will would not he valid with hut one witness, if the latter had desired the witness to subsezlbe the will as
“ The within is the basis on which I desire to have my affairs disposed of, should no other will be made by me.”
The. mind of the deceased seemed to contemplate that he might desire to make another and a different will. This is hardly such language as we might expect from the deceased, if he regarded what then transpired as a complete execution of the will, making a final disposition of his affairs.
But the question still remains, whether the witness subscribed the will when he subscribed the .endorsement. He testified that the deceased called his attention to the fact, that, in signing this endorsement, he was witness, not only to the endorsement, but to the will; that “ he opened the will and tapped where his signature was.”
We can not regard the endorsement upon the will in any other light than as if it were an equivalent writing upon any detached paper. The only advantage of being upon the will is, that it clearly identifies the document to which it relates.
Any .other writing to the same effect, clearly identifying the will to which it related, duly signed and witnessed, would have been in all respects as efficacious as that endorsed upon the will. Now, suppose the deceased, instead of writing upon the will, had written the same thing, in substance, upon a separate piece of paper, referring to the will so as to identify it, and the witness had subscribed it, as he did the endorsement, would the fact that the deceased called the attention of the witness to the proposi
The counsel for the appellants, in a well prepared brief, filed in reply to the argument of the appellee, after discussing the admissibility of parol evidence, deduce from the authorities the following proposition, which seems to us to be correct:
“ The true ■ principle of law which runs through and harmonizes all these and other like cases, is this: Evidence, both written and parol, is admissible and competent to show that the requirements of the statute have been complied with; but it can not be made sufficient as a substitute for the requirements of the law.”
The law requires a will to be attested and subscribed by two witnesses. Ilyatt, in this case, did not subscribe the will. He subscribed merely the writing endorsed upon the will. And we can not substitute, in place of his subscription to the will, parol evidence that his subscription to the endorsement was intended as a subscription to the will.
In our opinion, the finding below was light, and the judgment must be affirmed.
The judgment below is affirmed, with costs.
Petition for a rehearing overruled at the May Term, 1877.
Note. TIowk, J., having been of counsel in the cause, was absent when it was considered.