In

jurisdiction of the court of one or all the wit- mistaken as to the fact of acting as witnessnesses, defeat the probate of the will, but es to the execution of this will, it would alonly changes the nature of the proof. most necessarily follow that they were also stead of its being shown by the attestation mistaken in their testimony as to the several clause that there was a compliance with the particulars occurring at the time of such statute, the court, or jury, if the case is tried signing, If so important a fact as the sigby a jury, are to be reasonably satisfied of nature of their names as witnesses has escapthe fact of a proper attestation from other ed recollection, the accompanying incidents sources and the circumstances of the case." must have shared the same fate.' "The deThe case of Matter of Will of Cottrell, 95 nial of the principal event necessarily inN. Y. 333, is similar in some respects to volves all the details in the same result.' the case at bar, and the following extracts Peebles v. Case, 2 Bradf. Sur. (N. Y.) 226. from the opinion of Ruger, C. J., therein are Upon looking into the evidence, we find that pertinent in the present inquiry: it was in proof that the testator boarded and "Although the occasions in which all of lodged with the alleged subscribing witnessthe subscribing witnesses testified positively es (who were husband and wife), not only against the due execution of a will have been at the time the will purported to have been infrequent of late years, a number of such executed, but had done so for several years instances are reported among the earlier previous thereto; that the husband had been English cases, which have been cited with a subscribing witness to a will previously approval, in recent cases in our courts. executed by the testator; and that the will Those cases are collated and commented up-in dispute, apparently properly executed, was on in the case of Tarrant v. Ware, 25 N. Y. 425, note, by Judge Denio, reported as a note to the case of Trustees of Auburn Seminary v. Calhoun, 25 N. Y. 425. The determination of the question of fact involved in the inquiry as to whether a will has been properly executed or not is governed by the same rules which control in the trial of other questions of fact. The proponent has the affirmative of the issue, and, if he fails to convince the trial court by satisfactory evidence that each and every condition required to make a good execution of a will has been complied with, he will necessarily fail in establishing such will. It would undoubtedly have been competent for the trial court in this case to have denied probate to the will in question upon the evidence before it, and in that event we should have been bound by its decision. This, however, it has not done, but, on the contrary, has found that the will was duly executed. Upon referring to the evidence in the case, we certainly find quite an unusual and extraordinary condition. The two persons purporting to have signed this will as subscribing witnesses not only each testify that none The surrogate has found as a fact, of the formalities required by the statute upon conflicting, yet competent, evidence, were complied with in its execution in their that the subscribing witnesses to the will in presence, but also positively deny that ei- question in fact signed the attestation clause. ther of them was present at its execution The witnesses to the will have, by or signed the attestation clause. No greater signing the attestation clause, certified to weight can be given to that part of the facts taking place upon its execution, directevidence of these witnesses wherein they ly conflicting with the evidence given by deny that the several formalities required them upon the trial. To believe this evidence by the statute were unperformed in the ex- requires us to suppose that the testator deecution of this will than to their more im- liberately forged the names of witnesses to portant testimony that they were not present his will at a time and under circumstances on the occasion and did not sign the attesta- when it was just as convenient for him to tion clause. It follows, of course, that if have obtained their genuine signatures therethey do not recollect or perversely refuse to to. Upon this evidence the surrogate has retestify to the interview itself, that they fused to give credit to their testimony, and would also deny the several incidents which must, we think, necessarily have found, for accompanied such an interview. reasons appearing sufficient to him, that none "If, therefore, it was established by com- of the evidence given by them was entitled petent evidence that these witnesses were to belief. While no motive or reason ap

found among the papers of the deceased after his death. It also appeared that the will, as well as the attestation clause, was wholly in the handwriting of the testator, and also bore his undoubted signature at the end thereof. The testator declared during his last sickness that the will executed as he had described it, was either among his papers or that he had given it to his executor. A bag containing the testator's papers, and among which was the will in question, was produced by the executor at a meeting of the testator's relatives, including the contestants, held at such executor's house on the day of the testator's death, and its contents were then for the first time made known to the parties interested by one of such relatives, who read it in the presence of the persons there assembled. Specimens of the handwriting of each of the subscribing witnesses were properly put in evidence on the trial, and, from a comparison of such specimens with the signatures of the witnesses to the attestation clause, experts testified that such signatures were respectively in the genuine handwriting of such witnesses.

*

*

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73 A.-51

pears upon the face of the evidence incorpo- | requisite formalities were complied with, are rated in the record before us for imputing fortified by the acts and conduct of the tescorruption or perjury to the subscribing wit- tator. Nearly three years elapsed between nesses in giving such evidence, yet to be- the date of the will and the death of the teslieve what they testify to on the subject in- tator, and he had, therefore, ample time and volves consequences so unnatural and im- opportunity to supply any defects in its exeprobable that we are constrained to hold cution, if any existed; but at the last mothat the surrogate was justified in discred- ment, when the subject of a will was brought iting their testimony. to his attention, he evidently supposed that he had made a valid testamentary disposition of his property. It also appears that it was executed while the testator was living in the family of the alleged witnesses, that one of them had formerly acted in a similar capacity for him, and that they were both persons who, for convenience as well as from their relations to the testator, would naturally have been selected as witnesses to a will drawn by himself, and whose execution he personally

"The affirmative evidence tending to show an omission on the part of the testator and witnesses to comply with the requirements of the law in the execution of the will having been thus discredited by the court below, it only remains to determine whether there was, within the rule, sufficient evidence of the facts to authorize the surrogate to find the

supervised. We think the various circum

stances to which we have referred, in connection with the full and regular attestation clause in the handwriting of the testator, proved to have been signed by the witnesses, were sufficient to authorize the finding by the court below establishing the will."

The presumption that all things have been done regularly includes regularity in the orAs der of signatures upon an instrument. was well said in Dewey v. Dewey, 1 Metc. (Mass.) 354, 35 Am. Dec. 367: "The purpose of procuring the attestation of the witnesses was to give effect to the instrument as a valid will. It can hardly be supposed that the testator, who was by his own active agency procuring the authentication of the instrument by the requisite witnesses, would have omitted the first step necessary to its due execution, viz., the signature of himself." In Allen v. Griffin et al., 69 Wis. 533, 35 N. W. 22, the court said: "We think, in the absence of clear proof that the witness or witnesses signed before the signing of the testator, it should be presumed that the testator signed first. This would be the usual order of signa

due execution of the will. It would seem
from the language of the Code that proof of
the handwriting of the testator, and of the
subscribing witnesses, to a proper attestation
clause, was regarded as the most important
and conclusive fact on the trial of an issue
as to a proper execution of a will. Such evi-
dence, in connection with other circumstan-
ces tending to prove its due execution, would
seem, within all the authorities, to justify
a decree admitting it to probate, even against
the positive evidence of the subscribing wit-
nesses. It was always considered to afford
a strong presumption of compliance with the
requirements of the statute in relation to the
execution of wills that they had been con-
ducted under the supervision of experienced
persons, familiar not only with the forms re-
quired by the law, but also with the impor-
tance of a strict adherence thereto. Chambers
v. Queen's Proctor, 2 Curteis, 415; In re Kel-
lum, 52 N. Y. 519; Cove v. Cawen, 3 Curteis,
151; Peck v. Cary, 27 N. Y. 9, 84 Am. Dec. 220.
We think that that presumption also arises
in this case. The testator had not only once
correctly gone through the ceremony of exe-
cuting a will, but by drawing the attestation
clause in question he had at the time necessa-
rily brought before his mind each one of the
conditions imposed by the statute as neces-tures."
sary to its valid execution. It is quite unrea-
sonable to suppose that such a person having
drawn and signed a will, and having added
thereto a proper attestation clause, should
have provided witnesses therefor, and requir-
ed them to sign a certificate to the effect that
each of the required formalities had then
been observed, without also providing for
their actual performance. He had knowl-
edge of the necessity of the act required to
the validity of the business he was then
transacting, and to hold that he omitted it
would oblige us to ascribe to him the inten-
tion of performing a vain and useless cere-
mony at the expense of time and labor to
himself and the commission of a motiveless
crime.

"The presumptions arising from the certificate of the subscribing witnesses, and the

"That the testator signed the will first is indicated by the will" (citing Dewey v. Dewey, 1 Metc. [Mass.] 354, 35 Am. Dec. 367). Barnes v. Barnes, 66 Me. 296.

Whether the signatures of the testator and those of the witnesses on the instrument in question are genuine or not, and whether the will was properly executed, were questions of fact, and clearly within the province of the jury to determine. Their verdict in favor of the will has been approved by the justice of the superior court who presided at the trial. A verdict so approved is not to be disturbed without weighty reasons against it. Wilcox v. Rhode Island Company, 29 R. I. 292, 70 Atl. 913. No such reasons appear in this case.

The exceptions of Emily R. Newell are therefore overruled, and the case is remitted to the superior court for further proceedings

BLODGETT, J. (dissenting). The three | nesses.' There is no word here which inpersons whose names purport to be sub- dicates that the instrument so subscribed is scribed to the instrument in question several- a will; neither is it claimed that there is ly testify that the signatures thereon are any evidence in the record that the deceased not their signatures, and that the deceased declared the same to be his will, or that not only did not sign the instrument in ques- knowledge of this fact was in any way imtion in their presence, but that they did not parted to, or, indeed, possessed by, any of even know that he had left an alleged will them. The attestation clause is defective, until after his decease. No one of these also, in that it does not purport to set forth witnesses is related, either by blood or mar- that the signature of the testator was made riage, either to the deceased, to any of his or acknowledged in the presence of the subheirs at law, or to any of the legatees or scribing witnesses. In other words, if the devisees under the will, and each one of them subscribing witnesses should admit not only is without pecuniary interest of any kind the genuineness of their signatures, but also whether probate be granted or denied. Their should confirm, by their affirmative testireputation for veracity is not impeached, and mony, every fact set forth in the attestation two of them testify that they were not at the clause, there would still remain a failure to house in Pawtucket where it is claimed they prove that the testator either signed in their acted as witnesses at the time the instrument presence, or, having previously signed, deis supposed to have been executed; one being clared the signature to be his in their presin Providence, and the other in attendance ence; and that requirement of the statute at the Pawtucket High School, more than would rest only on the presumption that, ina mile distant, and the testimony of the asmuch as the statutory number of witnesses latter being confirmed by a reference to the testified that they signed as witnesses at the school record, which shows his presence at request of the testator and in his presence school on the day in question. No attempt, and in the presence of each other, it must even, is made to deny this alibi of these follow that the testator on his part had witnesses; but the case for the proponents previously made or acknowledged his signarests solely on certain admittedly genuine ture in the presence of all of them and of no signatures of these witnesses to certain let- number less than all of them. I am not ters and checks, which were submitted to the unmindful of the decision of this court in Re jury without a word of expert testimony as Christopher Fry's Will, 2 R. I. 88; but in to their similarity or identity with the sig- that case all the witnesses were dead, and natures in question, and the only contrary here there is the testimony of three witnesstestimony is that of the brother of the de- es against the presumption. ceased, who is also the principal beneficiary under an instrument purporting to be the last will and testament of a childless testator, more than 70 years of age, who thereby gave his wife only "her dower right in my estate." This witness does not testify that the deceased and the three persons whose names are subscribed as witnesses even met on the day in question, but avers that the deceased told him that he had executed a will, and says he saw it (but did not read it), and that the three names were there then as they are there now. I see no reason to believe that three disinterested witnesses are more liable to be in error or to swear falsely concerning the genuineness of their own signatures than one interested witness is to be in error in respect of his testimony, and am of the opinion that in this case the testimony SO strongly preponderates against the verdict that it should be set aside and a new trial ordered. At such trial further evidence may be offered on the alibi of the two witnesses above referred to, which may or may not be of assistance in determining the issue presented.

There is a further consideration to which it seems proper to advert. The attestation clause is as follows: "On this twenty-sixth day of October 1905, we three, at the request of the above-named William E. Newell, in his presence and in the presence of each other, hereunto subscribe our names as wit

In Re Will of Cottrell, 95 N. Y. 329, supra, the facts are not dissimilar to those in the case at bar; but there are three observations to be made on that case: First, that the court there expressly says in the opinion that by a recent statute it was limited to a consideration of questions of law only, expressly stating, also, that if the verdict had been against the will in that case they would have been powerless to disturb such a verdict on the evidence; second, though not necessarily controlling, the Code of New York expressly provided for the method of proceeding when the subscribing witnesses should either forget or deny the fact of signature; and, lastly, that in that case the attestation clause completely set forth all the requirements of the statute of New York concerning the execution of a will. In this case no witness pretended to say whether the deceased signed at his brother's house or at the newspaper store which he immediately entered after the interview with the attorney who prepared the instrument and then later acknowledged his signature at the residence of the three persons whose names are subscribed as witnesses, or whether he signed the same at such residence.

From beginning to end of this record there is not a word to indicate the time or place of the actual signature of this instrument by the deceased, and the presumption is no greater in favor of any one of these three places

Edwin G. Eastman, Atty. Gen., and Charles H. Batchelder, for complainant. John W. Kelley, for respondent.

and two methods of execution than in favor | frank or open in the matter, and unreasonof any other of them. Yet in two of these ably delayed reporting the completion of the places it is not claimed that the witnesses collection and making settlement. Respondwere present, and the validity of the instru- ent removed. ment is thus dependent upon several presumptions, each of which is negatived by the testimony of three witnesses, viz., the presumption that the deceased signed (for no person claims to have seen him sign), and the further presumption that he subsequently declared his signature in the presence of all three, and not of any one only, or of any two only, of the three, thus adding one presumption upon another.

The facts undoubtedly present a most unusual and extraordinary case; but upon this record I am of the opinion that the burden of proving the due and solemn execution of this instrument, which the law wisely casts upon the proponents, has not been sustained, and that there should be a new trial.

(75 N. H. 301)

In re ALLEN.

PARSONS, C. J. The only particulars in which this case differs from Delano's Case, 58 N. H. 5, 42 Am. Rep. 555, are that the money Delano appropriated did not come to him by reason of his office of attorney, and his friends were not able to restore all that he had appropriated. In that case it was thought unsafe to trust Delano with the money of his clients when he had misapplied trust funds in his possession, because the temptation to which he had yielded was one to which he would be constantly exposed in the practice of his profession. Allen, when exposed to this temptation, yielded. Expecting, doubtless, that he could postpone a settlement until the whole amount of the judgments was collected, he took to his own use the money which he received by virtue

(Supreme Court of New Hampshire. Rocking of his office. "It is indispensable that an ham. June 26, 1909.)

ATTORNEY AND CLIENT (8 44*)-DISBARMENT
-USE OF CLIENT'S MONEY.

attorney be trustworthy. And he is not trustworthy if he is capable of improperly An attorney who, having collected part of applying to his own use his client's money, judgments of his clients, uses the money for his whether he intends to return it or not." In own purposes without their knowledge, not in- Delano's Case, it was inferred he was catending to defraud, but hoping to be able to ob-pable of misapplying a client's money because tain funds when it was necessary to make pay- he had misapplied money received by him as ment, having, however, no certain means of doing so, will be removed from office as an unfit collector of taxes. The respondent here has person, though his friends, when settlement is done what it was inferred Delano was carendered imperative, furnish him the money to pable of doing. The fact that Allen's friends have paid the client does not remove the doubt as to his integrity in the future. If reliance on his friends was the consideration under which he ventured to use money not his own, when he had no certain means of replacing it, his success in this instance does not tend to produce a belief that he may not

make it.

[Ed. Note.-For other cases, see Attorney and Client, Cent. Dig. §§ 55-62; Dec. Dig. § 44.*] Complaint against Harry F. Allen, an attorney of the court, charging, among other things, the conversion of his client's money and misrepresentation to the client of the progress of the collection of the latter's de-again regard that consideration as a suffimand against a third party. The facts were cient reason for similar conduct; nor does heard before a single justice, who found the the favor done him in this instance authorize foregoing charges proved, and others set the court to continue to hold him out as forth in the complaint not sustained. The worthy of confidence, upon the theory that respondent, in making use of his client's such favor will be repeated should there be money, did not intend to defraud, but hop- occasion. The profession cannot be free ed to be able to obtain the funds in some from all suspicion if persons are permitted way when it became necessary to make pay- to continue members of it who have once ment. The client was not defrauded; for, been untrue to the profession and their when settlement was rendered imperative, clients. Money collected by an attorney for the respondent's friends by loans or gifts his client, while in the hands of the attor furnished the necessary funds. When the ney, is the money of the client, and not capmoney was used by the respondent, he had ital for the use of the attorney in his busino certain means of replacing it, and no rea- ness. Unless the client elects to create the sonable grounds for expecting he could do relation of debtor and creditor, any use of so, except by obtaining it in the manner he the client's money by the attorney for his did. He did intend to take to himself the own advantage is a breach of trust, which use of his client's money while it remained cannot be tolerated for a moment without in his possession, and did so. If he did not risk to the high reputation in such matters intentionally misrepresent to his client as which it is the pride and the duty of the to the progress of the collection, he was not profession to maintain. Allen is found to be

Where the condition of the manway and HARRIS v. CONSOLIDATION COAL CO. of the heading in a coal mine were a source of (Court of Appeals of Maryland. June 29, 1909.) danger, open and obvious, the miners using the

For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes