165 Wis. 601 | Wis. | 1917
It is first suggested that the will is fatally defective because of the witnesses not having signed at the
It is next insisted that the finding as to the witnesses having subscribed their names to the instrument after it was signed by the testatrix is contrary to the evidence. There is some conflict on that matter, though considering all the circumstances, we should hesitate to hold that the finding is against the clear preponderance of the evidence. It is doubtful, at least, whether such a holding would be justified by the record. The will appears on its face to have been regularly executed. While there is not a formal attestation certificate or clause, that is unnecessary since the statute does not expressly require such. It merely provides that a will, to be valid, must be “signed by the testator or by some per- • son in his presence and by his express direction, and attested and subscribed in the presence of the testator by two or more competent witnesses in the presence of each other.” Sec. 2282, Stats.
' The attestation and subscription feature is satisfied by the witnesses signing their names to the instrument to prove that it was signed by the testator as maker. As said in Shinner v. American Bible Soc., supra, “Anything further, in mere form, is not contemplated, and would be mere supererogation.”
The importance of conserving the constitutional right to
With what has been said, we may pass the question of whether the finding objected to has sufficient support in the evidence without definitely deciding the matter, since we have concluded that the order of signing is not vital, where that of the testator and that of the witnesses occur, as in the particular instance, when all are present and as part of a transaction then occurring in its entirety. This court does not appear to have directly passed upon that question, though it has been referred to in previous cases, — Lewis’s Will, supra; Allen v. Griffin, 69 Wis. 529, 35 N. W. 21. Some courts have held to the contrary, but, generally, under statutes somewhat different than ours, and, in effect, giving undue dignity to mere formality. •
As indicated by the quotation from the statute, it does not expressly require'that the testator shall first sign and then 'the witnesses “attest and subscribe” though it is, doubtless, the- better and the ordinary way. The regulations in the written law are for the purpose of conserving the inherent right to dispose of property by will. Like all such regulations, they should be administered so as to effect their purpose, not in such technical way as to involve unnecessary difficulties in the enjoyment of the testamentary right and so as to be liable to operate to the destruction of it though the intention of the testator be. clear. Mere informality, where
The foregoing has ample support in the general treatment of the subject of the execution of wills under our statute, in the decisions of this court to which we have referred, and by decisions upon the precise point in courts elsewhere referred to by counsel for respondent. Horn’s Estate, 161 Mich. 20, 125 N. W. 696; Limbach v. Bolin (Ky.) 183 S. W. 495; Kaufman v. Caughman, 49 S. C. 159; Gibson v. Nelson, 181 Ill. 122, 54 N. E. 901; Rosser v. Franklin, 6 Gratt. (Va.) 1; Miller v. McNeill, 35 Pa. St. 217, 222; O’Brien v. Galagher, 25 Conn. 229; Cutler v. Cutter, 130 N. C. 1, 40 S. E. 689; Shapter’s Estate, 35 Colo. 578, 85 Pac. 688; Silva’s Estate, 169 Cal. 116, 145 Pac. 1015, 1017.
The state of the law on the subject discussed is well stated in 40 Cyc. at page 1127, referring to a long line of authorities:
“The rule obtaining in England and some of the United States is that it is indispensably necessary to the valid execution of a will that the signature of the witnesses he affixed subsequent, in point of time, to that of the testator; while the rule prevailing in other jurisdictions is that, in the absence of an express statutory requirement that the witnesses must sign after the testator, the fact that part or all of them sign before is immaterial when all are present at the same time and their acts are part of one continuous and complete transaction.”
That the rule is as above indicated, in England, and is followed in jurisdictions in this country where the distinction between the nature of the testamentary right, in the former, and in the latter, is not appreciated, is most natural. In England there is no testamentary right, strictly so called. There is only a testamentary privilege, while here there is such right,- — one of inherent character, protected by the fundamental law, and regulated by statute for the purpose of
In view of the nature of sucb right as recognized here, the purpose and the letter of the statute, and especially the weight of authority in this country, we unhesitatingly hold that, where the signatures of the witnesses and the testator form parts of one continuous transaction and all actors are present from first to last, the mere order of affixing the signatures is not vital to the validity of a will; though, as before stated, the orderly and far the better way is for the signature of the testator to precede in time the signature of the witnesses.
The next suggestion made is that the testatrix did not know or understand the contents of the instrument. That seems to be involved in the next point made that she was not of testamentary capacity, and the last one, that she acted under undue influence exercised by her sister. All those matters are specifically covered by the findings of fact which are amply sustained by the evidence.
These features of the evidence fully warranted the findings. There was an entire absence of any showing that Mrs. Griffith was susceptible to undue influence, or that there was any opportunity for, or disposition to exercise such influence by her sister or any one else. Then there is the undisputed evidence that the idea of making the will was solely that of the testatrix and that she carried it out without suggestion from, or consulting with, any one; that she directed the person who did the writing for her, using paper and pencil which were conveniently at hand, to act in the matter, and such person then wrote, in the testatrix’s presence and in absence and without knowledge of any other person, at her dictation, what appears in the body'of the instrument; that later, at her request, the paper was produced, all persons were excluded by her from the room except the one who had prepared the
The manner in which the property.was willed is satisfactorily explained by the facts that the latter was possessed of an ample fortune and of good prospects for the future; that the beneficiary was an only sister to whom the testatrix was warmly attached and who was alone in the world, quite along in years, and of a very meager means.of support; and the further circumstance that the lot devised, and one owned by the sister, adjoined and were occupied by a building, the whole having formerly belonged to the mother from whom each derived her interest. It was quite natural that the testatrix should have considered that her part should go to the sister and the former entirety be restored instead of the latter being left in danger of having to deal with a stranger.
There is no reason, as we view the case, why any costs or allowance should be made to the guardian ad litem under see. 4041a or sec. 40415, Stats., and therefore none will be allowed in this court, but such guardian and those he represents may well be protected from being burdened with costs notwithstanding the failure of the appeal. It is within the power and according to the practice of the court to do that where justice seems to require it.
By the Gourt. — The judgment is affirmed. No costs or
A motion for a modification of the judgment so as to allow to the guardian ad litem a reasonable sum for his services and disbursements on the appeal, payable out of the estate, was denied on June 12, 1917.
