In Re the Will of Williams

WinbobNe, J. Tbe pivotal question here presented is this: In tbe light of the testimony of the two subscribing witnesses, who testified in tbe trial below, is tbe paper writing propounded for probate “signed” by Hannab Williams, Sr., within tbe purview of G.S. 31-3 which prescribes tbe requirements for formal execution of a written will with witnesses?' Tbe answer is “Yes.” In this State it is provided by statute Gr.S. 31-3 that “no last will or testament shall be good or sufficient, in law, to convey or give any estate, real or personal, unless such last will shall bave been written in tbe testator’s lifetime, and signed by him, or by some other person in bis presence *235 and by bis direction, and subscribed in bis presence by two witnesses at least, no one of wbom shall be interested in tbe devise or bequest of tbe estate . . .” Tbis statute is similar in purport to tbe statute G.S. 22-2 pertaining to contracts requiring writing, generally known as tbe statute of frauds, wbicb declares tbat “all contracts to sell or convey any lands . . . shall be void unless said contract, or some memorandum or note thereof, be put in writing and signed by tbe party to be charged therewith, or by some other person by him thereto lawfully authorized.” That the name of the testator may be signed to the paper writing by some other person in his presence and by his direction is expressly authorized by the statute G.S. 31-3. Such is the case also in instances to which the provisions of G.S. 22-2 apply. The principle is recognized in Devereux v. McMahon, 108 N.C. 134, 12 S.E. 902; In re Johnson, 182 N.C. 522, 109 S.E. 373; S. v. Abernethy, 190 N.C. 768, 130 S.E. 619. And with respect to the signing by the testator, or by “the party to be charged,” as the case may be, this Court in interpreting the statutes, has held that when a signature is essential to the validity of the instrument, it is not necessary that the signature appear at the end unless the statute uses the word “subscribe.” Devereux v. McMahon, supra; Hall v. Misenheimer, 137 N.C. 183, 49 S.E. 104; Richards v. Lumber Co., 158 N.C. 54, 73 S.E. 485; Boger v. Lumber Co., 165 N.C. 557, 81 S.E. 784; Burriss v. Starr, 165 N.C. 657, 81 S.E. 929; Peace v. Edwards, 170 N.C. 64, 86 S.E. 807; Alexander v. Johnston, 171 N.C. 468, 88 S.E. 785; S. v. Abernethy, supra; Corp. Comm. v. Wilkinson, 201 N.C. 344, 160 S.E. 292; Paul v. Davenport, 217 N.C. 154, 7 S.E. 2d 352; In re Will of Goodman, 229 N.C. 444, 50 S.E. 2d 34. In the Richards case, supra, Clark, O. J., writing for the Court, declared that “this has always been ruled in this State in regard to wills, as to which the signature may appear anywhere.” This declaration is recognized in Boger v. Lumber Co., supra; Burriss v. Starr, supra; Peace v. Edwards, supra; Alexander v. Johnston, supra. And in Boger v. Lumber Co., supra, ,it is said that “the authorities make a distinction between statutes requiring instruments to be signed and those requiring them to be subscribed, holding with practical unanimity, in reference to the first class, that it is not necessary for the name to appear at any particular part of the instrument, if written with the intent to become bound; and as to the second class, that the name must be at the end of the instrument.” In the light of these principles, the testimony of the subscribing witnesses, in the present case, is sufficient to support a finding by the jury that the paper writing in question was signed in the name of Hannah "Williams, Sr., by Rev. L. N. Neal in her presence and at her request, *236 witbin the meaning of the statute G.S. 31-3. The words “will of” preceding the name of Hannah Williams, Sr., given their ordinary meaning, tend to identify the paper writing as her will, and to indicate that she knew it to be her will. All other questions stated in the brief of appellants have been given due consideration, and each is found to be without merit. Hence in the judgment below we find No error.