Green v. Pearson

*27 Anderson, J., delivered the opinion of#the court. The question in this case is the validity of the will of Albert Pearson, deceased. The issue devisavit vel non was, by consent of the parties, tried before the chancellor sitting- both as chancellor and jury. Appellants were the contestants; appellees, the contestees. There was a. decree upholding- the will, from which appellants appeal. Albert Pearson died leaving a paper purporting to-be his last will and testament. Narcissus N. Pearson was named in the will as executrix. The executrix probated the will iii common form before the chancery cleric of Calhoun county, where the testator lived and died. Appellants challenged the validity of the will upon the alleged ground that in its execution section 5078, Code of 1906', section 3366, Hemingway’s Code, had not been complied with. To appellants’ petition filed in the chancery court of Calhoun county challenging the validity of the will, all persons interested were made parties. Appellants claim that the will is void because in its execution the last clause of the above statute was not complied with. That clause of the statute provides that if a will is not wholly written and subscribed by the'testator himself, it shall be attested by two or more credible witnesses in the presence of the testator. The will involved was not written and subscribed by the testator himself, but was written by L. M. Howell, one of the subscribing- witnesses thereto. The other subscribing witness was Sam Lindsey. Appellants’ precise contention is that the decree of the trial court upholding the will cannot be sustained because there was insufficient evidence tending- to show that the testator, at the time of the *28 execution of tlie alleged will, declared tlie paper which, he signed to be his last will and testament, and called on the subscribing witnesses, Howell and Lindsey, to attest it as such. They contend, and that contention is conceded by appellees, that the burden of proof was on the ap-pellees to establish the due execution of the will. And appellants cite Maxwell v. Lake, 127 Miss. 107 88 So. 326, as laying down the rule as to what was necessary for appellants to prove in order to establish the due execution of the will. It wgs held in that case, construing the clause of the statute here involved, that the word “attested” used in the statute was broader in meaning than the word “subscribed,” and that the purpose of the statute in requiring two witnesses to attest the will was to have more than their mere signatures to the will; that it was the duty of the attesting witnesses under the statute to observe and see that the will was executed by the testator, and to observe his capacity to make a will. Appellants’ contention is that the testimony in this case falls short of meeting’ those requirements. As stated, a jury was waived by the parties, and the issue was tried by the chancellor sitting both as chancellor and jury. The case, therefore, stands exactly as it would if there had been a jury trial of the issue, and the jury properly instructed by the court as to the law of the case, followed by a verdict and judgment for the ap-pellees sustaining the will. If such a judgment can be justified from the record in the case, it must be done. Aaron v. Citizens’ Insurance Company of Missouri (Miss.), 110 So. 120. Putting it differently: If the case had been tried by a jury, and under the evidence appel-. lants had been entitled to a directed verdict, then the decree of the chancellor should have been in their favor. On the other hand, if the evidence tended to establish the validity of the will, it was a question for the jury, and the decree of the chancellor must be upheld. It follows that the question resolves into whether the evidence tended to establish that the deceased signed the paper *29 involved declaring it to be Ms last will and testament, and called on the subscribing* witnesses, Howell and Lindsey, to attest his capacity to make a will, and his signature thereto, and that the testator affixed his signature to the will in the presence of the subscribing witnesses, and that they affixed their signatures thereto in his presence and in the presence of each other. Howell, one of the subscribing witnesses, testified that the deceased called on him to write the will; that he accordingly wrote it in the presence of the deceased and in the presence of the other subscribing witness, Lindsey; that the deceased told the witness Howell what he wanted the will to contain, which was written into the will; that the witness Howell stated in the presence of the deceased and in the presence of Lindsey, the other subscribing witness, that it was necessary to have two subscribing witnesses, and that thereupon the witness. Howell signed it as a subscribing witness, and called on the other subscribing witness Lindsey, who signed his name to the will; that the deceased signed the paper in the presence of the two subscribing witnesses, and they signed it in the presence of the deceased and in the presence of each other. The witness Howell testified further that the deceased appeared to comprehend the nature and purpose of the will. On cross-examination, he stated, however, that he could not say that the deceased declared the paper in question to be his last will and testament, nor did he remember that the deceased called on him and the other subscribing witness to subscribe the will as such. The other subscribing witness, Lindsey, testified that he was present and signed the will as a witness at the request of Howell, the other subscribing witness; that he did not remember that the deceased declared the .paper to be his will, nor did he remember that the deceased called on any one to subscribe the paper as á witness to its due execution, nor did he know whether the deceased had sufficient mental capacity to understand wha.t he was doing. *30 Appellants argue that the evidence was insufficient to meet the requirements of the law. The witness Howell’s testimony that the deceased appeared to understand the nature and purpose of his act in executing the paper was sufficient evidence to establish that fact. The publication and attestation of a will may he by construction. One may speak by his actions as well as by word of mouth. The writing of the will by the witness Howell, at the request of the deceased, and embodying therein the disposition the deceased desired to make of his property, and the signing of the will by the deceased, was a sufficient declaration by the latter that the paper he had signed was his last will and testament. It was not necessary for him to so declare in appropriate words. Such a declaration would have added no force whatever to what had been done. The same is true with reference to the requirement that the testator must request the subscribing witnesses to attest to the will. A request to sign a will as a witness, made in the presence of the testator by one intrusted with the preparation of the will, is equivalent to a request by the testator. It is sufficient that enough is said and done in the presence and with the knowledge of the testator to make the witnesses understand that he desires them to know that the paper is his will, and that they are to be the witnesses thereto. 28 R. C. L., p. 127, section 82, and cases in notesl We think that the evidence tended to show that the deceased had sufficient mental capacity to make a will; that the paper in question contains the disposition he wished to make of his property; that he declared it in the presence of the subscribing witnesses to be his last will and testament, and affixed his signature thereto as such;- and that he requested the subscribing witnesses to attest what he had done in that respect, which they did in his presence and in the presence of each other, and that those facts may be shown by construction as well as by actual words spoken. It follows from these views that the decree of the chancellor must be affirmed. Affirmed.