A Treatise on the Law of Evidence

§ 673. Execution of wills. (2.) The highest degree of solemnity which is required in the formal execution of wills is that which is required in a will of lands, by the Statute of Frauds; and this chiefly respects the signature and the attestation by witnesses. These formalities, all of which are ordinarily required to be shown upon the probate of wills in the courts of probate in the United States, we now proceed to state.

§ 674. Signature of testator. And, first, as to the signature of the testator. A "signature" consists both of the act of writing the party's name, and of the intention of thereby finally authenticating the instrument. (a) It is not necessary that the testator should write his entire name. His mark is now held sufficient, even though he was able to write.2 (b) And if the signature

evidence of the will, but not conclusive. Smith v. Bonsall, 5 Rawle, 80, 83; Coates v. Hughes, 3 Binn. 498, 507; Stanley v. Kean, 1 Taylor, 93.

In several other States the English rule is followed; as in New York (Jackson v. Legrange, 10 Johns. 386; Jackson v. Thompson, 6 Cowen, 178; Rogers v. Rogers, 3 Wend. 514, 515); and in New Jersey (Harrison v. Rowan, 3 Wash. 580); and in Maryland (Smith v. Steele, 1 Har. & McH. 419; Darby v. Mayer, 10 Wheat. 470); and in South Carolina (Crossland v. Murdock, 4 McCord, 217).

Whether a will of lands, duly proved and recorded, in one State, so as to be evidence in the courts of that State, is thereby rendered evidence in the courts of another State, under the Constitution of the United States, art. 4, does not appear to have been decided. See Darby v. Mayer, 10 Wheat. 465. In Ohio, it is made evidence by statute. Bailey v. Bailey, 8 Ohio, 239, 240.

1 29 Car. II. c. 3, § 5. By Stat. 7 W. IV. & 1 Vict. c. 26, § 9, it is now provided, that no will, whether of real or personal estate (except certain wills of soldiers and sailors), shall be valid, "unless it shall be in writing and signed at the foot or end thereof by the testator, or some other person in his presence and by his direction; and unless such signature be made or acknowledged by him in the presence of two or more witnesses present at the same time, and unless such witnesses attest and subscribe the will in his presence; and no publication other than is implied in the execution so attested shall be necessary." For the formalities required in the execution of wills in the United States, see 6 Cruise's Dig. tit. 38, c. 5, passim, notes (Greenleaf's ed. 1827).

2 Baker v. Dening, 8 Ad. & El. 94; Jackson v. Van Dusen, 5 Johns. 144; In re Field, 3 Curt. 752; Taylor v. Draing, 3 N. & P. 228; In re Bryce, 2 Curt. 325; Wilson v. Beddard, 12 Sim. 28; Harrison v. Elwin, 3 Ad. & El. N. s. 117. In Pennsyl

(a) A will written in pencil is valid, under a statute which simply requires a writing." Myers v. Vanderbelt, 84 Pa. St. 510; Re Fuguet's Will, 11 Phila. (Pa.) 75; Dickenson v. Dickenson, 2 Phill. Eccl. 173; Re Dyer, 1 Hagg. Eccl. 219; 1 Redf. Wills, § 17, pl. 2; Merritt v. Clason, 12 Johns. (N. Y.) 102.

But that a will written on a slate is not such a "writing," was held in Reed v. Woodward, 11 Phila. (Pa.) 541, on the ground that the statute requiring a writing meant a writing with the instruments and on the materials commonly used for such purposes.

It is no objection to a will that it is in

the form of a letter, provided it sufficiently shows a final testamentary intent, and is properly executed. Cowley v. Knapp, 42 N. J. L. 297.

(b) Pridgen v. Pridgen, 13 Ired. (N. C.) 259. A testator's name was signed to his will by another person, at his request, and he then made his mark. It was held that this was not a sufficient execution of the will under the Missouri statute. Northcutt v. Northcutt, 20 Mo. 266. If the attestation clause in a will recites that the testator has made his mark, it is sufficient if the testator writes his initials, instead of making a mark. In re Savory, 6 Eng. Law & Eq. 583. A dying man declared a paper

is made by another person guiding his hand, with his consent, it is sufficient.1 But sealing alone, without signing, will not suffice; nor is a seal necessary in any case, unless it is required by an express statute.2 One signature by the testator is enough, though the will is written upon several sheets of paper; and if the testimonium clause refers to the preceding sheets as severally signed with his name, whereas he has signed at the end only, this will suffice, if it appears to have been in fact intended to apply to the whole. (a) Such intention would probably be presumed from his acknowledgment of the instrument, to the attesting witnesses, as his will, without alluding to any further act of signing. Nor is it material on what part of the document the signature is written, if it was made with the design of completing the instrument, and without contemplating any further signature. On this ground, a will written by the testator, and beginning,—"I, A. B., do make," &c., has been held, under the circumstances, sufficiently signed.5 (b) vania, the will must be signed at the end with the testator's own name, if he is able to write it; and if not, by some person in his presence and by his express direction; the incompetency and signature by request being provided by two witnesses (Stat. April 8, 1833); or by his mark or cross (Stat. Jan. 27, 1848); Dunlap's Dig. pp. 571, 1106; Brightley's Purdon's Dig. 1475, § 7. (c) Where the testator made his mark, but the scrivener wrote the wrong Christian name over it, the court held, that under this latter statute the will was well executed, the mark governing the written name, and satisfying the statute. Long v. Zook, 3 Am. Law Journ. 27. In Ohio, New York, and Arkansas, also, the signature must be at the end of the will. See 6 Cruise's Dig. tit. 38, c. 5, §§ 1, 9, notes (Greenleaf's ed.)

1 Stevens v. Vancleve, 4 Wash. 262, 269.

2 Pratt v. McCullough, 1 M'Lean, 69. And see Avery v. Pixley, 4 Mass. 460, 462; Hight v. Wilson, 1 Dall. 94; Doe d. Knapp v. Pattison, 2 Blackf. 355; ante, vol. i. $ 272. A seal is not now requisite to the validity of a will, in any of the United States, except New Hampshire, in which State a seal seems still to be required in a devise of real estate, but not in a will of personalty. See Gen. Laws, p. 455; Rev. Stat. c. 156, § 6; Stat. 1848, c. 424.

3 Winsor v. Pratt, 2 B. & B. 650.

41 Jarman on Wills, pp. 70, 71, 5th (Am.) ed. *80.

5 Lemayne v. Stanley, 3 Lev. 1; 1 Jarman on Wills, p. 70, and n. (3), by Perkins,

to be his will, tried to sign it, and failed, and made no request that any one should sign it for him; and it was held, that the instrument was no will. Ruloff's Appeal, 26 Pa. St. 219.

(a) It is not essential to the validity of a will that the different parts of it should be physically connected. It is sufficient if they are connected by their internal sense, or by a coherence and adaptation of parts. Wikoff's Appeal, 15 Pa. St. 281; ante, § 673, n. "The true question is, was the identical writing, the document, in all its parts finished and completed as the testatrix wanted it. . It would be a dangerous rule to say, that all wills must

be written on one continuous sheet of paper, or that they must necessarily be tied or fastened together, with tape and a waxen or other seal.' Jones v. Habersham, 63 Ga. 146. In the absence of proof to the contrary, several sheets of paper, showing a connected disposal of property, the last only being signed, will be presumed to be parts of one will. Marsh v. Marsh, 1 Sw. & Tr. 528; post, § 674, n.

(b) See Adams v. Field, 21 Vt. 256, where this subject is very thoroughly discussed; and i Redf. Wills, § 18, pl.

10-12.

§ 675. Publication. Publication is defined to be that by which the party designates that he means to give effect to the paper as his will.1 (a) A formal publication of the will by the testator is not now deemed necessary; it being held, that the will may be good, under the Statute of Frauds, without any words of the testator, declaratory of the nature of the instrument, or any formal recognition of it, or allusion to it. But though sanity is generally presumed, yet it is incumbent on the party asking for the probate of a will affirmatively to establish that the testator, at the time of executing it, knew that it was his will.3(b) It is not necessary, however, that this knowledge be proved by direct evidence; it may be inferred from his observance of the forms and solemnities required by statute for the due execution of a will. (c) And where the

5th (Am.) ed. *80; Right v. Price, 1 Dougl. 241; Doe v. Evans, 1 C. & M. 42; 3 Tyrw. 56; Sarah Miles's Will, 4 Dana, 1. In Ohio, Pennsylvania, New York, and Arkansas, the signature is, by statute, required to be placed at the end of the will. 2 Rev. Stat. N. Y. p. 63; Watts v. The Public Administrator, 4 Wend. 168; Rev. Stat. Ark. c. 157, § 4. See 6 Cruise's Dig. tit. 38, c. 1, 5, 9, 14, 18, 19, notes (Greenleaf's ed. 1857).

1 Per Gibbs, C. J., in Moodie v. Reid, 7 Taunt. 362.

2 Ibid.; 1 Jarman on Wills, p. 71, 5th (Am.) ed. *80. See 6 Cruise's Dig. tit. 38, c. 5, §§ 14, 18, 52, notes (Greenleaf's ed. 1857); White v. British Museum, 6 Bing. 310; Wright v. Wright, 7 Bing. 457; Warren v. Postlethwaite, 9 Jur. 721.

And see

4 Kent, Comm. pp. 515, 516; Small v. Small, 4 Greenl. 220. This question is now settled, accordingly, in England, by Stat. 1 Vict. c. 26, §§ 9, 11-13.

8 White v. British Museum, 6 Bing. 310; Sweet v. Boardman, 1 Mass. 258; 4 Dane, Abr. p. 568; Gerrish v. Nason, 9 Shepl. 438. In New York, a declaration of the testator, that the instrument is his will, is required by 2 Rev. Stat. p. 63, § 40. See Brinckerhoof v. Remsen, 8 Paige, 488; s. c. 26 Wend. 325, 330. So in North Carolina. 1 Jarman on Wills, p. 71, n. (1), by Perkins.

4 Ray v. Walton, 2 A. K. Marsh. 71. And see Trimmer v. Jackson, 4 Burn's Eccl. L. p. 130 (8th ed.) On proof of the signature of the testator, it will ordinarily be presumed that he knew the contents of the will. Billinghurst v. Vickers, 1 Phillim. Eccl. 191; Fawcett v. Jones, 3 Phillim. Eccl. 476; Wheeler v. Alderson, 3 Hagg. Eccl. 587. But this presumption may be repelled by proof of any circumstances of an opposite nature, such as his ignorance, sickness, state of mind, or the like; or, the inconsistency of its provisions with his obvious duty or known affections; or, the character and interests of the person who wrote the instrument. Ibid; Ingram v. Wyatt, 1 Hagg. Eccl. 384; Parke v. Ollat, 2 Phillim. Eccl. 324; Paine v. Hall, 18 Ves. 475; Durling v. Loveland, 2 Curt. 226.

(a) Dean v. Dean, 27 Vt. 746; Cilley v. Cilley, 34 Me. 162. When a will has been revoked, its republication cannot be proved by parol. There must be the same evidence as of publication. Carey v. Baughm, 36 Iowa, 540; Smith's Will, 9 Phila. (Pa.) 362.

(b) Declarations of the testator, made subsequent to the execution of the instrument which is offered as a will, showing that he still supposed a previous will to be operative and valid, and proposing alteration in it, and, in general, treating it

as still in full force, are admissible to show that he did not knowingly sign the instrument offered as his will. The weight of these declarations is for the jury. Canada's Appeal, 47 Conn. 450. If, prior to the execution of the will, it was read over to the testator, or otherwise brought to his notice, his knowledge and approval of the contents will be presumed. Guardhouse v. Blackburn, L. R. 1 P. & D. 109.

testator, knowing the instrument to be his will, produced it to three persons, asking them to attest it as witnesses; and they did so in his presence, and returned it to him, this was considered as a sufficient acknowledgment to them, in fact, that the will was his.1 (a)

§ 676. Same subject. Nor is it deemed necessary that the witnesses should actually see the testator sign his name. The statute does not in terms require this, but only directs that the will be "attested and subscribed in the presence of the testator by three or four credible witnesses." They are witnesses of the entire transaction; and therefore it is held, that an acknowledgment of the instrument, by the testator, in the presence of the witnesses whom he requests to attest it, will suffice; and that this acknowledgment need not be made simultaneously to all the witnesses, but is sufficient if made separately to each one, and at different times.2 (6) Nor is it necessary that the acknowledgment be made in express terms; it may be implied from circumstances, such as requesting the persons to sign their names as witnesses. But in such cases, it must appear that the instrument had previously been signed by the testator.3 (c)

373.

The will must also be attested

1 White v. British Museum, 6 Bing. 310. See also Hall v. Hall, 17 Pick.

2 Ilott v. George, 3 Curt. 160; In re Rawlins, 2 Curt. 326; In re Warden, Id. 334; In re Ashmore, 3 Curt. 607; Blake v. Knight, Id. 547.

8 1 Jarman on Wills, pp. 71, 72, and n. (1) by Perkins, 5th (Am.) ed. *80; Grayson v. Atkinson, 2 Ves. 454, 460; Hall v. Hall, 17 Pick. 373; Dewey v. Dewey, 1 Met. 349; Gaze v. Gaze, 3 Curt. 551; Keigwin v. Keigwin, Id. 607; Cooper v. Bockett, 4 Moore, P. C. 419. It is held otherwise in New Jersey, under the act of 1714. Den v. Matlock, 2 Harrison, 86; 4 Kent, Comm. 414, n.; Johnson v. Johnson, 1 Cr. & M. 140; supra, § 295.

tion of the will and the sanity of the testator are shown, it will be presumed that the testator knew its purport, though he could not read the language in which it was written. Hoshauer v. Hoshauer, 26

Pa. St. 404.

(a) A will in the handwriting of the testator, and signed by him in the presence of three competent witnesses, who attest the same at his request and in his presence, is well executed, although the testator does not declare to the witnesses, and they do not know, that it is his will. Osborn v. Cook, 11 Cush. (Mass.) 532; Hogan v. Grosvenor, 10 Met. (Mass.) 54. See also Beane v. Yerby, 12 Gratt. (Va.)

239. But see Brown v. De Selding, 4 Sandf. Sup. Ct. 10.

(b) Where one of the subscribing witnesses positively negatives the fact of the signing or of the acknowledgment of the signature by the deceased in his presence, and there are no circumstances that raise any presumption of his being mistaken, the proposed will cannot be admitted to probate. Noding v. Alliston, 2 Eng. Law & Eq. 594. See Shaw v. Neville, 33 Id. 615; Bennett v. Sharpe, Id. 618.

(c) The request to sign in attestation may be inferred from the acts of the testator. Bundy v. McKnight, 48 Ind. 502. See also Atter v. Atkinson, L. R. 1 P. & D. 665.

and subscribed by at least three competent witnesses.1 And here also, as in the case of the testator, a mark made by the witness as his signature is a sufficient attestation.2 No particular form of words is necessary in the attestation clause, nor need it express that the witnesses signed in the presence of the testator, it being sufficient if this is actually proved. It may also be inferred from

1 "By the New York Revised Statutes (vol. ii. p. 63, §§ 40, 41), the testator is to subscribe the will at the end of it, in the presence of at least two witnesses, who are to write their places of residence opposite their names, under the penalty of fifty dollars; but the omission to do it will not affect the validity and efficiency of their attestation. Lewis v. Lewis, 13 Barb. 17. Three witnesses, as in the English Statute of Frauds, are required in Vermont, New Hampshire, Maine, Massachusetts, Rhode Island, Connecticut, New Jersey, Maryland, Florida, South Carolina, Georgia, Alabama, and Mississippi. Two witnesses only are required in New York, Ohio, Michigan, Delaware, Virginia, Indiana, Illinois, Misssouri, North Carolina, Kentucky, Tennessee, Wisconsin, and Arkansas. In some of the States, the provision as to attestation is more special. In Pennsylvania, a devise of lands in writing will be good without any subscribing witnesses, provided the authenticity of it can be proved by two witnesses and if the will be subscribed by witnesses, proof of it may be made by others. Hight v. Wilson, 1 Dallas, 94, per Huston, J.; 1 Watts, 463. Proof of the signature of the testator to a will by two witnesses is prima facie evidence of its execution, although the body of it be not in the handwriting of the testator. Weigel v. Weigel, 5 Watts, 486. In North Carolina, two witnesses are required to a will of real estate, unless the will is in the handwriting of the deceased person, and is found among his valuable papers, or lodged with some person for safe-keeping. The name of the testator in such case must be proved by the opinion of three witnesses. 1 Rev. Laws N. C. 619, 620, c. 122, § 1. So in Tennessee. In Virginia, if the will is not wholly written by the testator, it must be attested by two or more credible witnesses, &c. 1 Rev. Code, Va. 375. In Mississippi, there must be three witnesses to a will of real, and one to a will of personal, estate, unless wholly written and subscribed by the testator. Howard & Hutch. Dig. Laws Miss. (1840), p. 386, § 2. In Arkansas, a will written through by the testator needs no subscribing witness, but the will must be proved in such case by three disinterested witnesses, swearing to their opinion. Still a will in due form subscribed will be effectual as against one not so subscribed. Rev. Stat. c. 157, §§ 4, 5. Every person in that State who subscribes the testator's name shall sign as witness, and state that he signed the testator's name at his request. Ibid. A will executed in South Carolina, in the presence of two witnesses, who alone subscribe it, is not sufficiently executed under the statute to pass real estate, although the scrivener was also present at the execution, and a codicil executed in the presence of two subscribing witnesses, one of whom was different from the two witnesses to the will, does not give effect to the will as to the real estate. Dunlap v. Dunlap, 4 Desaus. 305. The laws of South Carolina, at the time of the above decision, required three witnesses to a will of real estate only. Statutes at Large of S. Car. vol. iii. p. 342, No. 544, § 2; Id. vol. iv. p. 106, No. 1455, § 2; Id. vol. vi. p. 238, No. 2334, § 8." See 1 Jarman on Wills, p. 69 a, n. by Perkins, 5th (Am.) ed. *77; 4 Kent, Comm. 514; ante, vol. i. § 272, n. (1); 6 Cruise's Dig. tit. 38, c. 5, § 1, n. ; Id. § 14, n. (Greenleaf's ed. 1857). Ante, vol. i. § 272; Harrison v. Harrison, 8 Ves. 185; Addy v. Grix, Id. 504; George v. Surrey, 1 M. & Malk. 516; Jackson v. Van Deusen, 5 Johns. 144; Adams v. Chaplin, 1 Hill (S. C.), 266; 9 La. 512; 4 Kent, Comm. 514, n.; Harrison v. Elwin, 3 Ad. & El. N. s. 117; Doe v. Davis, 11 Jur. 182.

3 Where the witnesses testified that they saw the testator write on a paper, and that they signed it as witnesses, but they could not now swear that what he wrote was his name, nor to his name being on the will, but they identified the instrument produced as being the paper they subscribed, on which was the testator's signature; this was held sufficient. Thompson v. Hall, 16 Jur. 1144; 14 Eng. L. & Eq. 596. (a)

(a) And if they cannot remember other circumstances transpiring at the time, the attestation clause is prima facie evidence

of what it states. Allaire v. Allaire, 37 N. J. L. 312.

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A Treatise on the Law of Evidence, Volume 2