Stricker v. Groves

The opinion of the Court was delivered by Rogers, J. The act of the 8th of April, 1833 requires that every will shall be in writing, and, unless the person making the same shall [396] be prevented by the extremity of his last sickness, shall be signed by him at the end thereof, or by some person in his presence, and by his express direction. The construction given to the act of 1705 rendered some change in ‘the manner of authenticating wills highly expedient. Under the latter act it was held, that it was not necessary that the will should be sealed; nor that all the subscribing witnesses should prove the execution; nor that the proof should be made by those who subscribed as witnesses; nor was it necessary to its validity, that the witnesses should be present and see it executed, if written by the testator himself; and when special instructions were given, and a will was drawn conformably thereto, in the testator’s lifetime, though he did not sign it, it was held a good will in writing. 1 Dall. 94. 2 Binn. 414. 1 Serg. & Rawle, 256. 1 Yeates, 87. For remedy of some of these evils, the revised code requires that the will shall be in writing ; that it be signed by the testator, or by some person in his presence, and by his express direction, at the end thereof; and this formula is indispensable, unless the person making the same is prevented from signing, or giving the necessary directions for signing, by what is termed in the act the extremity of his last sickness. The manifest intention of the legislature in that section is to provide a remedy for the mischiefs which arose from admitting a paper to probate incomplete in its form, and which in many cases there was great reason to believe was intended for no other purpose than as memoranda for himself, or instructions for others, or a crude, informal, and incomplete essay towards a future complete and formal bequest of his. estate. The establishment of such a paper, when it contains but a partial distribution of his property caused great inequality and consequent injustice, among heirs ; and would do any thing, rather than express a settled purpose for a testamentary disposition of his estate. To put an end to all doubt and' uncertainty attending such imperfect instruments, the legislature has wisely altered the former law, by requiring that the animus testandi should be unequivocally manifested by the signature of the testator at the end of the paper, unless prevented by an absolute inability on his part to comply with the requirements of the act. When signed at the end, the us.ual and familiar mode in the transactions of life, to show assent to a written contract, the will is complete, and all doubt as to intention is removed. In these indispensable particulars this paper is defective. It was written by a scrivener, at the request and according to the instruction of the wife, who is the sole devisee, and without any previous communication with the testator. The paper is without date, nor is it signed by him, nor by another in his presence. It is not only incomplete in its form, but it is unexecuted, and only entitled to probate when it is clearly shown that the testator was prevented from observing the prescribed directions, by the extremity of his last sickness. What is a last sickness, or the extremity of a last sickness, we are not called upon [397] to define; although I agree that it were unreasonable that a long standing and continued infirmity, as a chronic disease, should be deemed to fall within the category. For if a person should be afflicted with a severe disease, and apparently in extremis, signing by the testator cannot be dispensed with, if he should recover from its effects. In this feature it resembles a nuncupative will, which is not good, unless it be made by the testator when he is in extremis, or overtaken by sudden and violent sickness, and has not time and opportunity to make a written will. A man dictates a will to a. scrivener, and while he is preparing it for a formal execution of the testator, becomes so ill that he can neither sign it, nor direct another to sign it for him, and dies in that condition, the presumption is a fair one, that he was prevented from its formal execution by the extremity of his sickness. But if the testator should recover, or become so much relieved from his disease, that he could either sign it himself, or direct another to sign it for him, a contrary presumption would fairly arise from his omission to do so. We would have a right to infer, and particularly if he lived some time after, that he had changed his mind, and that he neither wished nor intended that the paper should be taken as his will. The proof is, that the alleged testator was for a long time disabled in his hands, so much so, that he could not write legibly, if at all; but there was nothing to prevent him from authenticating the paper by his mark; nor is it alleged that he was incapacitated by disease from giving directions to others to sign it for him. But it is insisted, that his continued inability to sign the will, with his repeated application to others to sign it for him, and their refusal, is a compliance with the requisitions of the act. The impossibility of his compliance with the act does not appear. In truth there is reason to believe that he studiously avoided attempting to sign the paper which had been prepared for him with such cai’e, and that he anxiously evaded giving any express directions about it. All he could be prevailed on to say, appears to have been said with a view to rid himself of the importunity of the interested individuals by whom he was beset. Nothing can be collected from the evidence, which to my mind looks like an express direction to any person to sign the paper for him; and on this point we should not rest satisfied short of most clear and convincing proof. But admitting the facts to be as represented, still this paper has not the necessary characteristics of a devise. The paper must be actually signed, unless the signature be prevented by the state of health and condition of the testator. It is not enough that the omission to sign arose from the misapprehension, mistake, folly or perverseness of those to whom he may have applied for that purpose. If a testator, intending to make a will in favour of particular persons, is prevented from doing so-by accident, equity cannot grant relief. 1 Atk. 448. Whellan v. Russel, (1 Story’s E. 118.) So where a person, by reason of sickness, or for other cause, is unable either to write a [398] will himself, or to procure'a will to be written for him, it is a misfortune which does not admit of remedy, whatever injustice may result to others from the peculiar circumstances in which he maybe placed. It is far better to submit to the partial mischief which may arise from a case which is by no means common, than to run the risk of fraud, which will inevitably be consequent on the corruption and profligacy of individuals by whom he may be attended in his last moments. And these considei’ations have peculiar force here, where the law makes so equal and just distribution of intestate’s estates. If the paper be not signed, it is unnecessary to argue why it is not signed, unless the omission to execute the instrument arises from the mental imbecility or bodily infirmity of the testator, a total incapacity on his part either to sign the paper, or to give the required direction to others. We are of the opinion that there was no error in instructing the jury, that the testator losing the use of his hands, the refusal of the persons whom he requested to sign the paper for him, and a continued exertion at each opportunity to have the will signed, was not a compliance with the requisitions of the act. In conclusion; it is well to remark, that fraud is not alleged. Judgment affirmed.