Better v. Hirsch

Stevens, J., delivered the opinion of the court. The facts, as we interpret them, bring this case within the ruling of Sheehan et al. v. Kearney et al., 82 Miss. 688, 21 So. 41, 35 L. R. A. 102, and Armstrong v. Walton, 105 Miss. 337, 62 So. 173, 46 L. R. A. (N. S.) 552, Ann. Cas. 1916E, 137, and it follows that the decree of the learned chancellor upholding the will of Mrs. Hermann must be affirmed. The very illuminating opinion of this court, by Reed, J., in the Armstrong Case, and the authorities there referred to with aproval, make certain the conclusion we must reach. The present case cannot be difieren [622] tiatéd from the Armstrong Casé. There our court observed : “The Mississippi statute does not state where the signature of a testator to a will shall be located; It does not say that the will shall be signed or subscribed at the end thereof. As the statute is silent as to the place of signature,' and merely provides that the will shall be in writing and signed, we believe the rule that it is immaterial where the signature of the testator should be placed on The instrument should be followed in this state.” The record before us shows conclusively that Mrs. Mollie Hermann, a widow, without ■ children, intended to leave a will. It is fairly inferable from the testimony that she not only had drafted more than one will at different times, but that she was rather fond of talking about her will and making reference thereto. It appears that on Thursday, about April 1, 1915, a will which she had previously executed was then in a Vicksburg bank amongst her private papers. On Thursday afternoon she went to the bank, procured her will, and in her own handwriting 'rewrote it. She wrote all of it on this Thursday afternoon, except the concluding paragraph. This concluding paragraph she added to the will on the following Sunday morning, The day of her death. When she concluded the will on Sunday, she voluntarily gave expression to her desire to have the will signed, and herself sent for the two subscribing witnesses, Mr. C. B. Manheimer and Mr. Bernard Feld, who attested the document. It.appears that these witnesses came to Mrs. Hermann’s room and in her presence witnessed the will, at her request. Upon doing this, the • testatrix directed Mrs. Lowenthal to throw the old will into the fire. It is true that the witnesses did not sign the will in the presence of each other; but they did sign it in the presence of the testatrix and at the request of the testatrix. There is a general belief amongst many laymen and some lawyers [623] that a will must be signed by the witnesses in the presence of each other; but the statute does not so provide. The will in the present case is not probated as 'a holographic will. A holographic will would have to be “subscribed” by the testatrix. Our court has followed those authorities which make a distinction between the words “signed” and “subscribed.” Here the testatrix, no<t only wrote her own name in the caption of the will, but wrote every bit of the will itself 1 and we cannot escape the conclusion that, when she had the subscribing witnesses to come before her and affix their signatures, she thought the execution of her will was complete. She died under the firm conviction that her will was duly executed. The fact that’she wrote the will herself, including her own name in the body of the document, is at least a circumstance to show that the writing of her name in the will was intended, not only as words of description, but also to identify the document and to operate as a lawful signature'. Whether the signature written in the body of a will in any case is the completed act or not, depends, of course, on the intention of the testatrix, and may be regarded as a question of fact, to be answered and controlled by the testimony in each case. Here all the attendant circumstances- support the will as one duly executed in accordance with the provisions of our statute. Where the facts show an effort by the testatrix in good faith to execute a will, there should be no techni-' cal and hard rules of construction. As stated by Judge Whitefield in Sheehan v. Kearney, supra: “Any signature or mark signed by the testator, or by another in his presence and at his express direction, to the will, as and for his completed signature, and ac [624] knowledged and adopted by him as such at the time,, in the presence of the subscribing witnesses, is a sufficient signing within the meaning of” our statute. And again: “It is enough that what he writes is intended for and adopted as his complete signature.” In the present case the testatrix wrote with her own hand this clause: “I, Mrs. Mollie Hermann,'of Warren county, Mississippi, of sound mind and memory, make this my last will.” If she had thought it necessary to write her name at. the end of the will, she could and would have done so. It is inconceivable that she would take the will, and add. a concluding paragraph with her own hand, openly declare that she was making her last will, and voluntarily call for and secure the presence and signatures of witnesses, unless she firmly believed that all' legal requirements had been complied with. The fact that she died in about thirty minutes of the execution of this will is not sufficient to impeach the-document. She made detailed and specific disposition of her property, including her “clothes.” In fact, the learned counsel for apellants practically concede the charges of mental incapacity and undue influence are not supported by the testimony, and that the single issue is the one bringing into question the due signing or execution, of the instrument as required by section 5078, Code of 1906. Affirmed..