Cavett's Appeal

[25] The opinion of the Court was delivered by Gibson, C. J. In the remarks which the commissioners to revise the civil code have appended to their second report, they say that where the party is unable to affix his proper signature to his will, by reason of infirmity or otherwise, it is provided in the statute, reported by them as it has been enacted, that it may be done by another person in his presence and by his express direction. It must be admitted that the statute makes no such provision in express terms; it requires that “ every will shall be in writing, and, unless the person making the same shall be prevented by the extremity of his last sickness, shall be signed by him at the end thereof, or by somé person in his presence, and by his express direction.” It will be perceived that if he be not thus prevented, he is left at liberty by the letter to sign it with his own hand or by the hand of another; the one being a substitute and an equivalent for the other at his election. That inability to sign with his own hand is not an express condition precedent to signing by the hand of another, is conclusively shown by transposing the clauses of the sentence, Every will shall be signed by the person making it, or by some person directed to do so in his presence, unless he be prevented by the extremity of his last sickness — from doing what 1 Affixing his proper signature or procuring some one to do it for him; and what ensues the happening of the contingency 1 Not a license to employ another, for it is a postulate and a branch of the contingency itself, that he is unable to do so; but the case is left to stand, as the commissioners very properly say, on the provisions of the Act of 1705; a conclusion not to be avoided but regretted, as nothing could be more distressing than the uncertainty in which the subject was involved by that statute. But it is very clear that they spoke not unadvisedly of the legal effect of the section before us in every aspect of it, when liberally interpreted, as every remedial statute ought to be; and the fact that they had not explicitly declared their whole intention in it, is one proof among a thousand of the inaptitude of language to express all the operations of the mind, even when used by the most skilful; and of the imperfect adaptation of legislative provisions to particular cases. Little would have been done to prevent forgery and fraud, had signing by an amanuensis been allowed to convenience or caprice, instead of necessity. In a question of forgery, the character of the handwriting must ever- be a circumstance of the first importance; and it surely was not intended to dispense with it where it could be had. It might be impaired by tremor or infirmity; but even if it were destroyed, the uncertainty arising from it would be no greater than if the name had been written by the hand of another. The handwriting of the party himself, is certainly better evidence of authenticity than that of any one else; and it is not a supposable case that the legislature meant to subvert a wholesome principle of the law of evidence. [26] Then do the proofs before us show that the alleged testator was so infirm as to be unable to write his name ? The subscribing witnesses testify that when they were calleid in, he was sitting near the table on which lay the paper with his name and mark to it; and that they subscribed their names to it in his presence and at his request. This is the substance of their testimony. Iiis physician testified that his sight was dim, though he could readily distinguish his acquaintances; and his housekeeper testified that he had been unable to read a letter or the directions of his physician, though she had seen him reading books. Thus stood the evidence at the first argument, and it certainly falls short of proof of entire disability. The additional fact brought out by the evidence since taken by our direction, shows that defect of vision was not the difficulty. The scrivener testified that he could see unusually well at the time of signing, but complained that “ he could not write his name; that his hand trembled or shook on account of his last sickness.” The other witnesses say nothing about tremor, and it would be a measuring case, did the question of disability stand on common law evidence before a jury, instead of the evidence prescribed by a statute which requires the testimony of two witnesses to every part of the case. Here it stands on the credibility of the scrivener alone; and in that respect the proof is deficient. It is deficient also in the evidence necessary to show that the decedent’s name was signed to the paper in his presence and by his express direction; and though that fact might possibly be inferred from the testimony of the scrivener, it rests also on the testimony of only one witness. But inferential proof of direction seems to be inadmissible, as the statute requires the direction to be express, and consequently to be affirmatively proved. Every part of the ease must be distinctly made out to satisfy the jealous provisions of a statute which requires every fact that happens to be a link in the chain of evidence, to be doubly proved. The subscribing witnesses prove the decedent’s subsequent acknowledgment of the paper as his will; but not that his name had been put to it in his presence and by his express direction; for which, according to Dunlop v. Dunlop (10 Watts 153), subsequent acknowledgment or adoption, is not an equivalent. In these respects, the proof falls decisively short of the sum required by the statute. Decree reversed, and letters testamentary revoked.