Myers v. Vanderbelt

Mr. Justice Mercur delivered the opinion of the court, This case presents the single question, whether an instrument wholly written and signed with lead pencil, may be a valid will ? The sixth section of the Act of Assembly of 8th April 1838 declares “ every will shall be in writing.” It does not indicate the material on which it shall be written, nor the instrument or materials with which the writing shall be impressed. In Blackstone’s Com., Book.II., p. 297, it is said “a deed must be written or I presume printed, for it may be in any character or any language; but it must be upon paper or parchment. For if it be written on stone, board, linen, leather or the like, it is no deed.” This writer does not prescribe whether the writing shall be in ink or in pencil. He stops with declaring the substances on which it shall be made. Writing is the expression of ideas by visible letters. It may be on paper, wood, stone or other material. The ten commandments were written with the finger of God on tables of stone : Exod. xxxi. 18. The general rule undoubtedly is, that whenever a statute or usage requires a writing, it must be made on paper or parchment; but it is not essentially necessary that it be in ink. It may be in pencil. This view is sustained by numerous authorities, as applied to contracts generally: Chitty on Cont. 91; Jeffery v. Walton, 2 E. C. L. R. 385 ; Gray v. Physic, 11 Id. 443; Merritt v. Clason, 12 Johns. 102; Clason v. Bailey, 14 Id. 490. The same rule applies to promissory notes : Byles on Bills 134; Story on Prom. Notes, § 11; Gray v. Physic, supra; Closson v. Stearns, 4 Vt. 11; Partridge v. Davis, 20 Id. 499; Brown v. Butchers’ & Drovers’ Bank, 6 Hill 443. So a book account made in pencil, was held admissible in evidence as a book of original entries: Hill v. Scott, 2 Jones 169. In 1 Redfield on Wills, § 17, pi. 2, it is said “the English Statute of Frauds expressly required that a will of lands should be in writing. But it has been held that a will written in pencil instead of ink, would be good,” citing In re Dyer, 1 Hag. Ec. 219. That a will written in pencil may be valid was also ruled in Raymes v. Clarkson, 1 Phil. Ecc. 22; Dickenson v. Dickenson, 2 Id. 173. In Main et al. v. Ryder, ante, 217, speaking of the signature of a testator it was said, the manifest object of the act is to permit a [514] will to be signed as any other written instrument may be signed. So we think the authorities establish that a valid will may be drawn with the same materials that will suffice for the drawing of any written contract. As was well said by Mr. Justice Coulter in Hill v. Scott, supra, they abundantly prove that a writing in pencil is equivalent and tantamount to a writing in ink. The validity of a will written or signed wdth a lead pencil was referred to, but left undecided, in Patterson v. English, 21 P. F. Smith 459, but the opinion by Mr. Justice Williams contains a strong declaration against the propriety of writing or signing in that manner. The reason given against it, is the facility with which the writing may be altered or effaced. There is force in this suggestion. No prudent scrivener will write a will in pencil, unless under extreme circumstances. Whenever written, any appearance of alteration should be carefully scrutinized. Yet inasmuch as the statute is silent on the question, we cannot say the mere fact that it is written or signed in pencil, thereby makes it invalid. It is nevertheless a writing, known and acknowledged as such by the authorities, and fulfils the requirement of the statute. Judgment affirmed.