Davis v. Semmes

COCKRILL, C. J. The question in this case is, can one become an attesting witness to a will by making his mark when the person who writes the name of the witness fails to sign his name as witness of that fact? A subscribing witness, like the testator himself, signs most appropriately by subscribing his name in his own handwriting; and there is much reason why a witness intelligent and able-bodied enough to do this, should be chosen to perform the office. Nevertheless, a will may lawfully be subscribed by mark either by a testator or witness. It was so held as to the testator, by this court under the statute now in force in Cornelius’ case in the 14th Ark., 675. See too Gatline v. Price, 23 Ib., 396. The reasons which control in sustaining the testator’s subscription by mark apply also to the subscribing witness, when the governing provisions of the statute are similar. This is the rule recognized by the authorities. Schouler on Wills, sec. 313, and cases cited. It is argued that the statute has been changed since the decision in Cornelius’ case, supra, by the code of civil practice, in which it is declared that in construing its provisions a signature or subscription shall be held to “include mark, when the person cannot write, his name being written near it and witnessed by the person who writes his [own] name as a witness.’’ Mansfield’s Digest, sec. 6344. It is argued from this that the mark of a witness cannot be taken as his signature unless it is accompanied by the signature of the person who wrote the witness’ name. In Miller, ex parte, 49 Ark,, 18, this provision of the statute was under consideration, and it was ruled that it did not mean that the signature of the person who wrote the name of the witness should be the exclusive evidence of the witness’s signature. It was intended, as there explained, merely to put a signature by mark on the footing of a signature by writing, when made in accordance with the statute, and not to exclude other proof of the signature by mark. Now if we concede that this provision of the statute has any application to the execution of a will, the construction placed upon it in Miller, ex parte, which we think is its true meaning, left the attesting witnesses free to prove their signatures as they did in this case. The statute governing the probate of wills requires every subscribing witness, if he can be produced, to prove his own signature. Mansfield’s Digest, sec. 65 14, et seq.; and if the person who wrote the witnesses’ names in this case had attested that fact by his signature in accordance with the provisions above quoted, it would not have dispensed with the subscribing witnesses’ testimony or added anything to the force of their evidence. As was explained in Cornelius’ case, supra, when a signature by mark is permitted, it is not solely upon the ground of the illiteracy of the subscriber; and his signature is not rejected merely because it is shown that he could write. See too Schouler on Wills, secs. 313 and 314 and notes. The record shows that the court acted upon the presumption that the signature of the person who wrote the witnesses’ names was essential to the attestation, and the judgment rejecting the will will be reversed and the cause remanded for a new trial.