Nickerson v. Buck

Dewey, J.1 All that is requisite to the due execution of a will is the actual signature of the same, written by the testator, or by some one in his presence and by his express direction, and that the will “be attested and subscribed, in the presence of the testator, by three or more competent witnesses.” Rev. Sts. c. 62, § 6. The signature of the testator in this case was, so far as he personally subscribed it, a signature by making a X, but his name was appended to the cross to indicate the intended signature ; and, from the comparison of handwriting, it is quite obvious that it was thus written by John Kenrick, whose name is first borne on the list of attesting witnesses. It is proved that this witness had deceased before the trial; but the death of an attesting witness, or of all the attesting witnesses, [342] is not to defeat the validity of the will, if, in fact, duly executed. It changes the form of the proof, and allows of the introduction of secondary evidence of the due attestation and execution of the will. Such attestation is then to be shown, as it would be in the case of deeds, by proof of the handwriting of the witness. That being shown, primâ facie, it is to be taken to be true, and to have been put there for the purpose stated in connection with the signature. It is to be assumed, as regards that witness, that he duly attested the will in the presence of and at the request of the testator. In considering the sufficiency and weight of the evidence to establish the due and proper execution of this will, the fact of the death of this witness, and the presumptions that arise from proof of his handwriting, are somewhat material. As regards this witness, if nothing appears in other parts of the evidence to control the presumption resulting from proof of his handwriting, it may be taken that, as to his attestation, it was properly made to the signature by the testator. The question then arises upon the attestation by the two remaining witnesses. Neither of these latter witnesses saw the testator write his name, or actually make his mark, which was the form of the signature. But it has long since been decided that it is not essential that an attesting witness to a will should see the testator sign his name. All that is necessary for him to know from the testator is that the signature of the will is his, or written by his direction, and adopted by him. Hence, if the witness be requested by the testator to sign his name to an instrument as an attesting witness, and the testator declares to the witness that the signature to the will is his, that is abundantly sufficient. But the adjudicated cases go further, and hold that the actual signature by the testator may be made known to the witness in other modes than an express declaration to the witness that the will is his. Any act or declaration that carnes by implication an averment of such fact is equally effectual. Hence it has been repeatedly held that a declaration by the testator to the witness, that the instrument is his will, or even a request by him to the witness to attest his will, or other varied form of expression implying that the [343] same had been signed by the testator, are either of them quite sufficient. The cases of Ellis v. Smith, 1 Ves. jr. 11; Westbeech v. Kennedy, 1 Ves. & Beam. 362; Hall v. Hall, 17 Pick. 373; Dewey v. Dewey, 1 Met. 349; and Hogan v. Grosvenor, 10 Met. 56, fully sustain these positions. The testimony reported for our consideration in the case, taken together, establishes clearly the fact that the testator, Joshua Buck, intended to execute a will, and did in fact execute some instrument supposed by him to be a will. He requested Mr. Kenrick to write a will; “ to write one that would stand.” He knew two persons were called in to witness his will, in addition to Kenrick. This fact was brought distinctly before his mind,* and he assented to these persons as the witnesses he wished for that purpose. He saw these persons write their names to some paper. The request to these witnesses to attest his will was quite enough to authorize the inference that he had executed a paper as a will, and was equivalent to his acknowledgment that he had signed some paper as a will. The only objection to the sufficiency of this evidence is, that possibly there may be some uncertainty whether the instrument to which these two persons appended their names was the paper to which the testator referred when he spoke of his will, or assented to Mr. Kenrick’s statement in his behalf, to the witnesses, as to his executing the will. It is true that in the present ease, the paper to which the testator referred was not at the moment in his own hands, as it was in some of the cases cited. It is necessary that it be reasonably established by the evidence that this instrument is the same as the one referred to by the testator as his will. This paper was on the table; the testator was near by, within three or four feet, as one of the witnesses says, another placing him more remote. The paper now offered for probate is the paper written by Kenrick, and attested by him as is shown by the proof of the handwriting of Kenrick. If any fraud has been practised as to the substitution of any other paper, it must have been by the agency of Kenrick. There is nothing in the case to authorize any such charge of fraud, and certainly fraud is [344] not to be presumed. In our opinion, it may be safely assumed that this is the instrument referred to, by the testator; and if so, the evidence is clearly sufficient to authorize the inference that he acknowledged the signature of the will to be his by his acts, though he did not expressly so state. The court have not overlooked the circumstance that the form of signing this will by the testator was the making of a mark, and the name appended was written by Kenrick, the witness. Such form of signature is a perfectly legal one. It might in some cases furnish greater facility for fraudulent substitution of a false paper; but in the present case there is nothing to countenance any such supposition. The court are of opinion that the decree of the judge of probate, allowing and admitting to probate this will, be affirmed, with costs in this court for the appellee. Footnotes [1] This and the four following cases were argued and decided at the October term, 1852, at Taunton, at which were present the Chief Justice, and Dewey, Metcalf, Bigelow, and Cushing, JJ.