27 Ind. 443 | Ind. | 1867
This is a suit brought by the appellees, Sophia Watson and Henry Watson, her husband, against Isaac B. Beed and Bobert Beed, the appellants, and others, to contest the validity of the will of John Beed, deceased, and to set aside the probate thereof.
The material averments in the complaint are as follows : That John Beed died at the county of Harrison, Indiana, on the- day of December, 1865, possessed of an estate in said county of the probable value of $12,000, leaving as his children, and only heirs at law, the plaintiffj Sophia Watson, and the defendants, Isaac B. Beed, Bobert Beed, Mary Ann Chaffin, Sarah Elizabeth Stansifer, Henry H. Beed and Martha B. Watson; that on the 12th of December, 1865, a writing purporting to he the last will and testament of said
The defendants, Isaac E. Reed and Robert Reed, regarding' the complaint as containing two paragraphs, filed a separate demurrer to each paragraph. The demurrers were overruled, and they then filed an answer in denial of the complaint. The cause was submitted to the court for trial, a jury.being waived. The court found for the plaintiffs, that the will was unduly executed, and was therefore void. A motion for a new trial was interposed by the appellants and (Overruled, and judgment was then rendered for the-plaintiffs revoking the letters testamentary granted to the appellants, and declaring the will illegal and void.
The first question raised by the appellants, is that the court erred in overruling the demurrer to the second paragraph of the complaint,
W.e think the complaint is entire, and contains but a single paragraph, and shows a valid cause of action. But if the'closing averment of the complaint, that “the will is invalid, for the-reason that the same was unduly executed,” should be regarded as a second paragraph, or cause of action, it would still be sufficient, under the ruling of the court in Kenworthy v. Williams, 5 Ind. 375, where it was held sufficient to allege the undue’ execution of the will in general terms, without alleging whether by fraud, duress or otherwise.
One of the causes assigned for a ffew trial is, that the finding of the court is contrary to law, and to the evidence in the case, which raises the principal question discussed by counsel on either side, namely, was the will executed in conformity to the statute ? •
The facts relative to the execution of the will, upon which the finding of the lower court is evidently based, and which the evidence so clearly tends to establish as to require this court, in determining the legal question involved, to assume as true, are these: The will was written on the third or fourth of May, 1862, by Vincent Marsh, at his own
Isaac F. Reed, one of the appellants, testified that his father brought the will home on Sunday, the fourth, and gave' it to him to read the same evening, and that his father’s name had been signed to it before he saw it. The body of the will and the signature of Marsh were written in pale ink, but the signature of Reecl, the testator, was written with' quite black ink. Vincent Marsh, at the time he wrote the will, had but one kind of ink. There was no evidence even tendihg to show that Reed signed the will in the presence of Marsh, or that the latter ever saw it after Reed’s name was signed to it, or knew that Reed had signed it.
Did Marsh attest and subscribe the will as a witness, as required by the statute? This-is the material question presented by the facts of the case.
Section eighteen of the statute concerning wills 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
In a recent case in the Supreme Court of Massachusetts, in which it was held that it is not a sufficient attestation for a subscribing witness to write his name in the absence of the testator, and in anticipation of the testator’s signature, although he afterwards acknowledges it in the presence of the testator and of the other subscribing witness, a large number of eases bearing on this, and other questions rela
In Swift v. Wiley, 1 B. Mon. 114, decided by the Court of Appeals of Kentucky, under a statute, in effect, the same as ours, it was said by Robertson, C. J., that “ as the statute requires two witnesses to the publication of a will disposing of real estate, the paper subscribed by the 'witnesses must, of course, be completed as a legal will at the .time of the attestation,” &c. “ 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 different ends. Attestation is the act of the senses. Subscription is the act of the hand. The one is mental, the other mechanical; and to attest a will is to know that it was published as such, and to certify the facts required to constitute an actual and legal publication; but to subscribe a paper published as a will, is only to write on the same paper the names of the witnesses, for the sole purpose of identification. There may be a perfect attestation, in fact, without subscription.” See also O'Brien v. Gallagher, 25 Conn. 229.
The authorities, we think, all concur, that, to constitute a valid attestation of a will, the testator must either sign it in the presence of the subscribing witnesses, or acknowledge his signature to them. Here, as we have seen, the testator did not sign the will in the presence of Marsh,
But it is insisted by counsel that, as the statute does not direct the particular place of signing, it need not be at the foot or close of the will, and as the name of the testator may be signed by another person, in his presence, with his consent, that Reed, by requesting Marsh to subscribe the paper as a witness, thereby adopted the writing of his name at the beginning of his will as his signature thereto. In the very nature of things, the more appropriate place for the signature is at the conclusion, or foot, of the instrument, and the custom of placing the signature at that place is so nearly universal that the propriety of recognizing the name, if placed elsewhere, as the final signature of the party, may be seriously doubted. But the desire of the courts to give effect to instruments which are presumed to show the disposition intended to be made by the party of his property, and to avoid apparent hardships, has led to a virtual evasion of the letter of the statute, and has rendered the act of final signature of no importance, in ease the instrument is written by the testator himself,- or its-contents are made known to him, and he requests the witnesses to subscribe it as his will. The statute requires that a will shall be signed by the testator, and this requirement cannot be directly dispensed with, but it is evaded by admitting proof of the intention of the testator to adopt the name written by himself, or by another di-aughtsman, either at the commencement, or in the body, of the instrument, asliis final signature. A lax administration of this recognized right would lead to the greatest abuses, and would be an evasion of both the letter and spirit of the statute. SeeEedfield on Wills 212, note 27, where this question is discussed and cases cited.
Without pursuing the subject further here, it is sufficient, for the purposes of this decision, to say, that under the-
The finding and judgment of the court, we think, are •clearly right, and should therefore be affirmed.
The judgment is affirmed, with costs.