Riley v. Riley, 36 Ala. 496

36 Ala. 496 | Ala. | 1860

R. W. WALKER, J.

1. The decree in this case must be reversed. It was for the court to determine what facts were necessary to establish the signing and attestation of the will, within the meaning of the Code. , But the effect of the charge given was to refer the decision of this legal question to the jury. — Thomason v. Odum, 31 Ala. 108 ; Wright v. Bolling, 27 Ala. 259.

As, however, the main questions presented by the record will doubtless arise on another trial in the probate court, we deem it proper to express our views, in regard to them at this time. .

[2.] In order to constitute a valid signing of a will by the testator, it is not essential that he should write his own name. The'statute expressly allows the will to be signed by another for him; and-his name, when written by another for him, in his presence, and by his direction, will have the same effect as if written by himself. — Armstrong v. Armstrong, 29 Ala. 541; 1 Wms. Exrs. 69; Code, § 1611. And though Lord Sugden .has expressed a contrary opinion, it seems to be settled, that such signing for the testator may be made by a person who is one of the subscribing witnesses to the will. — In re Baily, 1 Curteis, 914; Smith v. Harris, 1 Robertson’s Eccl. R. 262; 1 Wms. Exrs. 69-70.

[3.] The statute requires the will to be “ attested by at least two witnesses, who must subscribe their -names thereto in the presence of the testator.” — Code, §1611. The questions we are called upon to decide, are, whether the signature of the witness may be made by anotherperson for him; and if so, whether one witness can subscribe for another witness, who is himself well able to write. While the statute provides, that the will may he signed by “the testator, or some person in his presence, and by his direction,” the provision in respect to the attesting witnesses is, that they “must subscribe their names thereto in the presence of the testator.” There is certainly much force in the suggestion, that the express allowance of the alternative in one case, with the absence of such allowance in the other, raises a strong inference that the legislature meant to require the actual, personal signature of each witness.

The English statute of frauds (29th Car. II.) required, that the will should be “ attested and subscribed, in the presence of the devisor, by three or four witnesses.” 1 Jarman on Wills, 112. We have not been able to find any English case, in which it was held, that the signature by another person for a witness is a sufficient, subscription by the latter, unless the facts showed a physical participation in the act of signing his name. In Harrison v. Elvin, 3 Ad. & Ell. (N. S.) 117, the witness whose name was written, and who was himself unable to write, held the pen, while the other .witness guided his hand ; and this was held a valid subscription. See also, to the same effect, Campbell v. Logan, 2 Bradford’s Surr. R. 96-7.

On the other hand, it seems to be settled in the ecclesiastical courts in England, that one of the attesting witnesses cannot subscribe for another. In In re White, before the prerogative court, (7 Jurist, 1045¿) the will was written for the deceased by a Mr. Culverhouse, and was signed' by the deceased, in the presence of Mr. and Mrs. Culverhouse, both being present at the same time; Mr. Culverhouse subscribed his name as a witness, in the presence of the testator and his own wife, and also subscribed the name of his wife as the second witness. Dr. Haggard moved for probate, and submitted, that the rule Uqui faciiper alium,faeit per se,” applied. Sir H. Jenner Fust, in passing upon the motion, said: “ It is impossible to grant probate of this paper. Why did not Mrs. Culverhouse make her mark at the foot of the will ? Motion rejected.” We have no access to the volume in which the ease just cited is reported, and find the foregoing statement of it, in Horton v. Johnson, 18 Geo. 397. The same case is referred to in Campbell v. Logan, 2 Bradf. Surr. R. 96, where it is cited from 2 Notes, of Cases, 461. It is there said by the surrogate,'that “the judge put the decision on the ground, that the statute did not authorize any person to subscribe the witnesses’ names — that the act required both witnesses to subscribe, ‘either by signature or mark.’ ” See, also, 1 Lomax Exrs. 88; 1 Wms. Exrs. p. 79, note (d.)

The point is decided in the same way in In re Hannah Cope, 2 Rob., 335. In that case, a testatrix, having signed her will, desired M. C. and E. T. to attest; - but, 'as E. T. could not write, the testatrix desired J. J. C., who was also present, to write the name of E. T., which J. J. C. did, but did not sign his own name; held, that the paper was not entitled to probate, as E. T. might have made bis mark, and that a desire that another should sign could not be construed to be a subscription by E. T.

So it has been held, that the acknowledgment by a witness of a signature previously made, is not a subscription within the meaning of the statute. — Playre v. Scriven, 1 Robertson’s Eccl. R. 774. In that case, an attesting witness, on the re-execution of the will, traced over his previous signature with a dry pen; and he was held, not to have subscribed, but only to have acknowledged his signature, which was not sufficient. Sir II. Jeuner Bust said: “ The witnesses are to subscribe; in other words, they are required, I conceive, to do an act which shall bo apparent on the face of the will.” To subscribe, is defined to be, “ to set one’s hand to a writing,” (Pridgen v. Pridgen, 13 Ired. 260,) and this the act requires the witnesses to do.

The rule adopted in the English cases, cited above, that one witness cannot subscribe for another, unless the latter makes his mark to his name as written, or otherwise physically partakes in the act of subscription, is approved of in Campbell v. Logan, (2 Bradf. Surr. R. 96-7,) and in Meehan v. Rourke, (ib. 392.) In the former caso, the surrogate said: “ There is nothing in the statute, authorizing one witness to sign the name of another witness.” But he conceded, that where thp facts show a physical participation of the witness in the act of signing his name, this is a sufficient compliance with the statute. In Meehan v. Rourke, supra, it is said: “ The statute of 1 Vic. c. 26 requires the witnesses to ‘ attest ’ and 1 subscribe ’ the will; and this, it has been decided, maybe done by signature or mark; but the witness must, in either case, partake in the physical act of subscribing.”

The English rule has also been followed by the supreme court of Georgia. "Where a will was subscribed in the presence of the testator, by two witnesses, each for himself, and one of them for a third person, all being present at the same time, it was held, that this was an insufficient attestation under the statute "of frauds. The third witness, who could not write, should have made his mark. Horton v. Johnson, 18 Geo. 396. See, further, Dayton on Surrogates, 99-101, and notes.

A different rule has been adopted in Virginia and Rentucky. In both, of those States, it is held, that where the name of one witness is signed by another, at the request of the former,-this is a valid subscription, although the witness whose name is thus signed does not make a mark, or otherwise partake in the act of signature. — Upchurch v. Upchurch, 16 B. Monroe, 102; Jesse v. Parker, 6 Gratt. 57. In this latter case, the attestation was held good; although it was shown that the witness whose name was signed by another was able to write.

Without now saying whether an actual physical participation of the witness in the act of signing is, in all cases, essential to a valid subscription of his name, we are not willing to go so far as to hold, that one, subscribing witness may sign for another, who is himself well able to write, and who does not in any way join in the physical act of subscription. Whatéver may be the rule in reference to witnesses who are not able to write, we think, that where a witness is himself well able to write, the subscription of his name by another subscribing witness ought not to be deemed a compliance with the statute.

The evidence set out in the record shows, that the will was written and signed for the testator by one Bobbins, who subscribed his own name as a witness, and also the name of the other witness; the latter not partaking, otherwise than by a simple assent, in the act of signature, although she “ could read and write very well; perhaps, better than Bobbins himself,” To hold that these facts amounted to a valid execution and attestation of the will, would -certainly weaken the safeguards against frauds and forgeries, which -it was the purpose of the statute to provide. It is manifest that the signatures of the witnesses, written by themselves, furnish'a reliable foundation for those legal presumptions in favor of the due execution of a will, which arise upon proof of the handwriting of the witnesses, when they are dead or out of the State. "We think we consult sound public policy in deciding, that one of the subscribing witnesses to a will cannot sign the name of another who is himself well able to write, and who does not physically participate in the act of signing.

Decree reversed, and cause remanded.