Long v. Zook

The opinion of the court was delivered by Gibson, C. J. If the execution of tMs will stood on the act of .1833, it would be imperfect; for though there was proof by one witness, and, on the principle of Greenough vs. Greenough, the attestation of another might stand for proof by him that the name actually signed was written by the testator’s direction, it is not the name of the testator himself; and that was a part of the signature which could not be supplied with the name of a stranger accidentally substituted for it. It may have been hard that a blunder of the penman should deprive a testator of his right to [403] dispose of Ms property by will; but it is to be considered that this right is a positive, not a natural one ; that it is surrounded with guards only to protect the testator himself; that it can be enjoyed only on the conditions annexed to it; and that there is no equitable relief against the words of a statute. So far was this principle carried in Stricker vs. Groves, 5 Whart. 386, that a refusal to sign a cripple’s name to his will, followed at each opportunity, by an ineffectual effort on his part to have it signed by others, was held not to be a reason for dispensing with the mandate of the act. A man could not be convicted of forging the will of John Doe, for having signed it with the name of Richard Roe, because it would not purport to be, and could not be, the will of any one else than him whose name it bore. If he could not, it would be hard to see how a misnomer of the testator could be a compliance with the statute. As an abortive attempt to follow its directions, it would be no better than no signature at all. It might perhaps admit of more than a doubt whether the will in contest was well executed when it was made. Rut it is unnecessary to express a positive opinion on that point, though the case was ruled on it; for where, as here, a mark is made, the act of 1848 dispenses with the name as an essential part of the signature, just as it dispenses with the mark where the testator’s name is written by Ms authority. “ Every last will and testament,” it declares,” “ heretofore made, or hereafter to be made, excepting such as may have been finally adjudicated prior to the passage of this act, to wMch the testator’s name is subscribed by his direction or authority, OR to wMch the testator has made Ms mark, shall be deemed, and taken to be valid in all respects.” It is thus distinctly declared that the name without the mark, or the mark without the name, may constitute the signature. The mark could gain no force from the attachment of the name to it without the testator’s authority; and his name attached with his authority, would be sufficient without the mark. Of what account is it that the impertinent name of a stranger, happens to be attached to the pertinent mark of the testator ? As it could not corroborate, it ought not to weaken it. The name is indeed an index to the mark; but it does not conclusively point to the marksman : he may be individuated by proof aliunde. It is ancillary to the mark, but by no means inseparable from, or indispensable to it. At the common law, it is the marksman’s touch, not the subscription of the name in connexion with it, which gives life to the instrument. Where, however, there is no mark or touch, the subscription of the name by direction of the party and in his presence becomes, by the principle of Hart vs. Struthers, 1 Penn. R. 291, Ms immediate act. The statute of 1833, inverted the common law principle so far as to exclude the mark, where there was one, from effect as an integrant part of the signature, and to require [404] the name itself to be written by the testator’s hand or at his bidding. Such was the construction put on it for reasons expressed in Greenough vs. Greenough, which were sufficient to convince us that the statute was not susceptible of any other. The argument against it was dratvn from the severity of its operation — defeating, it was said, more true wills than false ones — and it is obvious that it could legitimately be addressed only to the legislature. It was listened to in the proper place, and produced the act of 1848, already quoted. Had that act said nothing about the name, the mark, without a label attached to it — and the name is no more than a label — would have clearly satisfied the statute; and nothing else would have done it. As it is, the name without the mark, when written by the testator’s direction, would also satisfy it, looking, as it does, to distinct acts of plenary execution as mutual equivalents. As we have the testator’s true and proper mark, the attachment of a false and improper label to it, is surplusage which never vitiates. The mistake of a scrivener in affixing such a label, can not avoid that which was perfect before and would be good without it. The fallacy is in supposing that the name, under the statute, governs the mark where there is one, instead of being governed by it. The name affixed by a scrivener may intimate a falsehood; but the mark, when it is made by the testator, never. The latter when proved to be genuine, may satisfy the' statute; but the former, without the testator’s authority, can not. So far as the statute of 1848 would divest titles it has already been declared unconstitutional; but though this will was made before it, the death was after it; and, as no estate was vested in the testator’s life time, the case is within the remedial provision. The persons who have been disappointed by it, have no constitutional right to object to it. Judgment reversed and venire de novo awarded. Rogers, J., and Coulter, J., dissented.