In re Downie's Will

LyoN, J. There can be no doubt that when the deceased signed the instrument propounded as his last will and testament, and when the signatures of his brother George and — 72 — Watson were appended to it, be was of sound disposing mind and memory. Neither is there any reason to doubt that the instrument expresses his real intention in regard to the disposition of his property after his death; and the record discloses no ground for suspecting that any injustice would be done to his heir-at-law, should the instrument be established as his last will. Indeed, the case is singularly free of those extraneous circumstances often present in such cases, which force the mind, however reluctantly, to contemplate possible wrong and injustice as the result of applying in its integrity.a given rule of law. In such cases, impelled by what has seemed to them a persuasive justice, and with an exalted sense of the obligations which the deceased owed to his relatives or others, the courts have .sometimes strained the law to mahe a will what it ought to be, rather than to execute the will of the testator as he made it. And so, likewise, wills have been denied probate, or admitted thereto, on grounds which would not have prevailed had the specific provisions of the instrument been disregarded. Such, cases have tended to unsettle otherwise well settled rules, and have furnished many illustrations of the legal proverb, that “ hard cases make bad law.” The statute we are to interpret is as follows: “No will made within this state, except such nuncupative wills as are named in the following section, shall be effectual to pass any estate, whether real or personal, nor to charge or in any way affect the same, unless it be in writing, and signed by the testator, or by some person in his presence and by his express direction, and attested and subscribed in the presence of the testator, by two or more competent witnesses.” R. S., ch. 97, sec. 5. The question presented by this appeal is, Did Watson subscribe the instrument propounded as the last will and testament of Timothy C. Downie, in the presence of said Downie, within the meaning of the statute? The provision of our statute which makes it essential to the — 73 — validity of a will that it shall be attested and subscribed by witnesses in the presence of the testator, is taken from the English statute of 29 Car. II, c. 3, § 5, which has also been adopted without material change (except as to the number of witnesses required) in most of the states of the Union. The learned counsel for the respondent concedes that the English courts have uniformly held that unless the instrument be subscribed by the attesting witnesses in the conscious presence of the testator — that is, unless he may, if he choose, see the act of subscribing,— it is not a subscribing in his presence within the meaning of the statute. An exception to this rule is made of necessity in case the testator is blind; but in such case it is' held that the subscribing must be where the testator could see the act if he were not blind. But the counsel claims that there is a conflict on the subject in the adjudications of the American courts and in the opinions of American jurists, and hence, notwithstanding the English rule, that this court is at liberty to decide the question on principle, without regard to the decisions of other courts. The question in controversy was most ably argued at the bar on both sides, and numerous authorities cited and commented upon. Ye cannot here undertake a review of the cases bearing upon the question. To do so'would expand this opinion to an inordinate length without any corresponding benefit. The proposition that there may be a valid subscribing of a will out of the testator’s range of vision, is maintained in but very few cases. The leading case in support of the proposition is that of Sturdivant v. Birchett, 10 Gratt. (Va.), 67. The facts and the ruling of the court are correctly stated in the head note as follows: “A will is executed by the testator, and certain persons are requested by him to attest it. For convenience they take it into another room, out of the vision of the testator, and there subscribe their names to the paper as witnesses ; and they immediately, within one or two minutes, re — 74 — turn to the testator with the paper; and one of them, in the presence of the other, with the paper open in his hand, addresses the testator, and says, ‘ Here is your will, witnessed,’ at the same time pointing to the names of the witnesses, which are on the same page and close to the name of the testator. The testator then takes the paper and looks at it as if examining it, and then folds it up, and speaks of it as his will. EL"eld, that, under these circumstances, the recognition of their attestation by the witnesses to the testator is a substantial subscribing of their names as witnesses in his presence.” Two of the five judges constituting the court dissented from the decision of the other three judges, holding to the English rule. There are a few other similar cases in the same court; at least, cases which affirm the same proposition. We believe but one other case has been cited, in which it is directly held that there may be a valid subscribing of a will by a witness thereto out of the view of the testator. That is the case of Vaughan v. Vaughan, decided in the county court of Cook county, Ill., by Judge Bradwell, and reported in 13 Am. Law Reg. (4 N. S.), 735. The opinion contains a very able argument in support of that proposition; but the argument and decision are based on the statute of Illinois, which only requires that the will be attested (not attested and subscribed) “in the presence of the testator by'two or more credible witnesses.” The learned judge notes the distinction between “ attesting ” and “ subscribing,” and denies that the decisions under statutes requiring both acts to be in the presence of the testator are applicable in Illinois to a question concerning the subscribing of a will by a witness. This aspect of the Illinois case is noticed by Mr. Justice Gray, in Chase v. Kittredge, 11 Allen, 49 (see p. 61). In a note to Vaughan v. Vaughan, supra, the late Judge Redfield sharply criticised the English rule, and urged upon the courts of this country to break away from it and adopt the rule — 75 — for wbicb tbe respondent contends in tbe present case. Judge Redfield there expressed tbe belief that tbe English House of Lords, whenever tbe question should come before it for final adjudication, would establish a different rule. The question came before that tribunal in Hindmarsh v. Charlton, 8 H. of L. Cases, 160, and resulted in a reaffirmance of the rule which had theretofore prevailed in that country. In a note inserted in the third edition of his work on the Law of "Wills, after the decision of Mindmarsh v. Charlton by the House of Lords, the same learned writer said, that since the rule has been affirmed “ by the unanimous voice of the tribunal of last resort in the authoritative exposition of the common law, it might not answer any good purpose to longer question its reasonableness or necessity.” And in the same connection he refers to the case of Chase v. Kittredge, supra, which upholds the same rule. 1 Redf. on Wills (4th ed.), 230. Many cases in this country asserting and applying the same rule are referred to in the opinion in the case last cited, and in the brief of the learned counsel for the appellant in the present case. These are quite numerous. Thus we find an overwhelming weight of authority in favor of the English rule; so overwhelming that as able and independent a jurist as was Judge Redfield, was constrained to yield to it, although he believed the rule unsound. But the learned counsel for the respondent argued with great force against the rule, and eloquently appealed to us to overthrow it in this state, and establish the more just and reasonable rule for which he contended. The well known ability of the counsel, his great experience at the bar and his high appreciation of judicial duty, have prompted us to consider with much oare whether this is a case which will justify us in overturning a specific rule of statutory construction established and'upheld by such great weight of authority. We do not see our way clear to do so. We may concede that the rule is — 76 — unsound in principle; still it is a rule affecting tbe descent and testamentary disposition of property, and was established long before our statute of wills was enacted. It is a rule to which the maxim, stare decisis, is peculiarly applicable. To unsettle it, now by judicial decision, would be to unsettle a long and well established rule of property, which should never be done but by the legislature. To do so would be to add another to the list of cases already mentioned, in which the law has been warped and even perverted to accomplish what was supposed to be just and equitable, and to avoid the opposite. Thus to unsettle the law, even in the supposed interests of justice, is always perilous, often disastrous, and never justifiable. If the law is wrong, it is the duty of the legislature, not the courts, to correct it. The courts can only declare what the law is; they have no power to make it what it ought to be. In the light of these fundamental principles, we can only apply to this case the governing rule of law as we find it. We must hold, therefore, that the instrument propounded as the last will and testament of the deceased was not subscribed in his presence by the two witnesses whose names are appended to it, but only by one of them; and hence, that the same should not be admitted to probate. II. But the record seems to disclose another fatal objection to the pi’obate of this instrument as a will, which was not discussed in the argument. It is quite probable that the instrument was not attested: in the presence of George H. Downie, as required by the statute. The distinction between attestation and subscribing is well stated in Swift v. Wiley, 1 B. Mon. (Ky.), 114, as follows: “ To attest the publication of a paper as a last will, and to subscribe to that paper the names of the witnesses, are very different things, and are required for obviously distinct and different ends. Attestation is the act of the senses, subscription is the act of the hand; the one is mental, and the other mechanical; and to attest a will is to — 77 — Enow that it was published as such, and to certify the facts required to constitute an actual and legal publication; but to subscribe a paper published as a will, is only to write on the same paper the name of the witness, for the sole purpose of identification.” In this case the evidence is, that George H. Downie did not know the nature of the instrument when he put his name to it; and there is no evidence in the case that the deceased in his presence ever declared that the instrument was a will, or made any mention of its character. Without deciding the point, we are inclined to think the law is, that there must be some word spoken, or some act done, by the testator in the presence of the witnesses, showing that the instrument was intended by him to be his will — something to show the nature of the instrument,— or there can be no valid attestation. Nothing of the kind occurred in the presence of George H. Dow-nie; and hence, if our impressions are correct, the instrument was not attested by him in the presence of the testator. In that presence he failed to know that the instrument was intended by the testator to be his last will and testament. It follows that the judgment of the circuit court must be reversed, and the cause remanded with directions to that court to affirm the order and judgment of the county court. The costs must be paid out of the estate of the deceased, on the ground that the persons named in the instrument as legatees and executor had probable cause for endeavoring to establish the instrument as a will, and have acted in good faith. Jackman Will Case, 26 Wis., 364; S. C., id., 143. By the Court. — So ordered.