Ex parte Smythe v. Irick

The opinion of the court was delivered by Mr. Chief Justice McIver. The only question in this case is whether the will of Ellen A. Crawford, offered for probate in-due form of law, was duly attested. The facts in the case are, in the main, undisputed, and are sufficiently set forth in the decree of the judge of probate (which should be incorporated in the report of this case), in which he held that the will was duly attested, and admitted the will to probate. From this decree the parties who, it seems, would have been entitled to the estate in case there was no will, appealed t.o the Court of Common Pleas, and the appeal was heard by his honor, Judge Buchanan, who rendered judgment reversing the decree of the judge of probate, and from that judgment J. Adger Smythe, named as executor in the will, appeals to this court upon the several grounds set out in the record, which, with the judgment of Judge Buchanan, should be incorporated in the report of this case. — 312 — The only question in the case is whether the fact that one of the persons whose names appear as subscribing witnesses to the will, did not, in fact, write her own name, but requested her daughter, one of the other subscribing witnesses, to write it for her, rendered the attestation by that witness void and of no effect. The undisputed fact is that R. S. Forsythe, whose name appears as one of the subscribing witnesses to the will, appeared before the judge of probate on the 4th day of February, 1892, when the will was offered, by the executor, for probate in common form, and subscribed her name to the usual affidavit in such cases, in which, amongst other things, the deponent'stated, “that she was present and did see the said instrument of writing duly executed by the said Filen Ann Crawford, * * * and that R. S. Forsythe (the deponent) and M. G. Forsythe and S. W. Forsythe, in the presence of each other and of the said Ellen Ann Crawford, axid at her request, signed their names as witxiesses to the due execution of the same.” For while one of the grounds of appeal from the decree of the judge of probate imputes error to him “in considerixig axiy px'oof or evidence offered at the proof of the will ixx common form,” it appears from the “Case” that when the testixnony as to this matter was offered, no objection was interposed; axid, ixideed, as we uxxderstand the decree of the judge of probate, he does not base his coxiclusioxi upon the fact that the witxiess, R. E. Forsythe, made the affidavit above referred to, but merely states that fact as a part of the history of the case. Oxx the contrary, his conclusioxi is based upoxi the coxxceded facts that the name of R. E. Forsythe, as one of the subscribing witnesses to the will, was written by her daughter, in her presence and at her request, in the presence and at the suggestion of the testatrix, which he held was a sufficient sigxxing by the said R. E. Forsythe. In this coxxclusion we fully concur. There caxi be xio question that a will may be dtxly attested by a witness who, being unable to write his xiaxne, makes his mark. This is held even in Exxgland. Harrison v. Harrison, 8 Ves., 185, and — 313 — Addy v. Greix, 8 Ves., 504, which cases have been recognized in this State several times. Adams v. Chaplin, 1 Hill Ch., 266; Ray v. Hill, 3 Strob., 303. Indeed, this proposition does not seem to be contested by counsel in this case. But they contend that, in order to give efficiency to an attestation by a marksman, the witness must do some manual or physical act, tending to show his participation in such attestation — -as, for example, touching the end of the pen-stock or pen-holder, while another guides the pen, in making the mark. It seems to us, that attributing to this useless ceremony of the witness touching with his finger the end of the pen-holder while another guides the pen, the efficiency claimed for it, would be investing a useless form with much more importance than it deserves. What possible security this empty ceremony will afford against fraud, it is is impossible to conceive; for the essential fact, as it is claimed, of the touching of the end of the pen-holder, must, necessarily, be proved by parol evidence, in order to show the participation of the marksman witness in the act of signing; and why may not the fact that the name of the witness was written by another, in his- presence and at his request, be proved by the same kind of evidence? The one affords the same, if not better, protection against fraud than the other. The testimony in this case leaves no doubt of the fact, that the names of the three persons selected by the testatrix as witnesses of her will all appear on that paper in the appropriate place; and the fact that the name of one of those witnesses was not written with her own hand, but with the hand of another, at her request and in her presence, seems to us quite as good.an attestation as if the mark of such witness had been made by another, she going-through the useless ceremony of touching the end of the pen-holder with her finger while the other guided the pen in making the mark. If the name of a person is signed to a note, receipt, or deed by another, in his presence and at his reqtiest, the law would regard it as the act of the person whose name is thus — 314 — signed. Why? because, though the physical act of signing is done by another, yet such act having been done in the presence and at the request of the person whose name is there written, it is regarded as his act, qtd facit per alium facit, per se. While one partner cannot bind his copartners ordinarity by deed,, yet if he signs the name of the copartnership to a deed in the presence of his copartners, and with their assent, they are bound. Stroman v. Varn, 19 S. C., 307. Analogy, therefore, would lead us to the same conclusion as reasoning from the nature of the case has done. There being no direct authority in this State, so far as we are informed, upon the precise point which we are called upon to decide, we naturally seek for light from the authorities elsewhere. But those authorities seem to be conflicting, and we must follow those which appear to us to be based upon the better reasoning. Some of the cases which have been cited attach great and, as we think, undue importance to the participation by the witness in the mere physical act of signing or making the mark, while other cases, with good reason, as we think, attach but little importance to that circumstance. In Jesse v. Parker, 6 Gratt., 57, reported also in 52 Am. Dec., 102, one of the attesting witnesses wrote the names of the other two witnesses, in their presence and at their request, and the court held the attestation good. The court, in delivering its opinion, after saying that it had been settled that a witness may attest a will by making his mark, proceeded as follows: “The validity of such an attestation depends upon the signing of the name of the witness, by his authority and in his presence, and not upon the fact of his making a mark or doing some manual act in connection with the signature. The making of a mark would furnish little, if any, means of verifying the signature; and the doing of some manual act in connection with the signature would furnish no additional safeguard, appearing on the body of the instrument, against those frauds which it was the object of the statute (29 Car. 2) to prevent.” — 315 — The case of Upchurch v. Upchurch, 16 B. Munroe, 102, is to the same effect. So, also, in the case of Lord v. Lord, 58 N. H., 7, reported also in 42 Am. Rep., 565, in which we find this language: “One object of the statute (which the court had previously said, ‘is copied substantially from that of 29 Car. 2’) in requiring an attestation of a will, is to insure identity and to prevent the fraudulent substitution of another document. Another object is to surround the testator with witnesses to judge of his capacity. 2 Greenl. Ev., sec. 691; Upchurch v. Upchurch, before cited. And all those purposes are as readily attained in the case where the name of the attesting witness is written by the agent at the request of the principal, as where the latter makes his mark or holds a pen guided by another hand.” The same doctrine was held in a comparatively recent case in New York, in re Strong's Will, 16 N. Y. Supp., 104, decided in 1891, where the cases of Jesse v. Parker and Upchurch v. Upchitrch were recognized and followed. It is contended, however, that the doctrine laid down in the cases above cited only applies where the witness, whose name is written by another, is unable to write, and does not apply to the present case, where the testimony shows that the witness was able to write. We can see no reason whatever for such a limitation of the doctrine, especially where it appears that the witness was at the time temporarily incapacitated from writing. Indeed, in the case last cited, in re Strong's Will, the doctrine was applied where the witness was only temporarily incapacitated from writing “by reason of a felon on her hand.” In a California case, in re Guilfoyle’s Will, which we find reported in 22 Eaw Rep. An., 370, with full and instructive notes, we find the following language, which is very pertinent and to the point: “Persons who know how to write may become physically incapable of writing their names by reason of rheumatism, paralysis of the hands, and other causes, besides general physical debility, though of sound mind, and it seems unreasonable that the legislature intended to exclude — 316 — all such persons from the privilege of subscribing a will or other instrument by a mark. The language of the Code is, ‘when the person cannot write.’ This fairly includes all persons who are unable to write from any cause, even though they know how to write.” In this case, the judge of probate finds, as a matter of fact (and there, is no exception to this finding), “that Mrs. Forsythe was aged and very nervous, and wrote with such difficulty that her almost universal custom was to have her daughter, Miss Forsythe, sign all papers for her, and to do all her writing, and for this reason, and in accordance with this habit, she requested her daughter to sign her name to. the will as a witness on this occasion.” Accordingly the daughter did sign her name, in her presence, and in the presence of the testatrix and the other subscribing witness, Mrs. Forsythe, as the testimony shows, leaning over her at the time, and thus, practically, participating in the physical act of signing, if that were necessary. The fact that Mrs. Forsythe was able to sign her own name to the affidavit which she made for proof of the will in common form, can not affect the question, for the obvious reason that such affidavit was made about eight years after the execution of the will, long after she had been relieved from the causes which produced the extreme nervousness from which she was suffering at the time the will was executed. The Circuit Judge seems to have fallen into an error in supposing that the cases upon which we rely were based upon statutes differing from ours. An examination of those cases will show that the statutes there considered were substantially the same as ours, so far as the question here involved is concerned. So, too, his remark as to signing by proxy is misleading, for that implies that the agent or proxy signs in the absence of the principal; while here the conceded fact is, that the name of Mrs. Forsythe was written by her daughter in her presence and at her request. The judgment of this court is, that the judgment of the — 317 — Circuit Court be reversed, and that the decree of the judge of probate be affirmed.