Avaro v. Avaro

STATEMENT. BOND, C. — Joseph Avaro, Sr., who was born in Italy, became an immigrant in Lawrence county, Missouri, in 1881, and resided there until his death, in 1905. He was a farmer and became a landowner, but never learned either to read or speak the Ehglish language. He desired to make a will, and, for that purpose, in March, 1899, in company with John Rob [428] erts, who had lived in the same town in Italy where Avaro, Sr., was bom, he went to the office of one Badger, a notary public, in Monett, Missouri. The evidence tends to show that he carried out his purpose to execute his will in the following manner. He dictated its contentsi in Italian to John Roberts, who, in turn, translated what had been dictated to him into English to Badger, and Badger wrote in English what was thus dictated to him by Roberts; that after the will had thus been put into a preliminary form, it was transcribed by Badger so as to fill the blank portions of a printed will, and after being put in this final form, Badger then read it over, section by section, to Roberts, and Roberts, in the same way, translated it into Italian and communicated it to Avaro, Sr.; that after this was done Avaro, Sr., expressed himself satisfied and signed the will and requested Roberts to witness it and also to ask Badger to witness it, which was done by the affixing of the names of Badger and Roberts to said will under the word “witnesses.” By the terms of the will, the lands and personal estate of the testator were devised to the parties therein named, with some discrimination between his children. One of the children, Joseph Avaro, Jr., instituted a contest. The trial resulted in a judgment for defendants, and plaintiff appealed. OPINION. I. The only question raised in apellant’s brief is, whether the will of his father was executed as prescribed by law? The statute governing the making of wills is, to-wit: “Every will shall be in writing, signed by the testator, or by some person, by his direction, in his presence; and shall be attested by two or more competent witnesses subscribing’ their names to the will in the presence of the testator.” [R. S. 1909, sec. 537.] [429] In applying this section of the statute, the following propositions have been established in this State: 1st. The requirements of the statute are mandatory. [Catlett v. Catlett, 55 Mo. 330.] 2d. There must be proof of testamentary capacity. [R. S. 1909, sec. 535.] 3d. There must be a request, express or implied, by the testator that his will be attested, and, in pursuance of such request, the signatures of two witnesses must be affixed to the will in his presence. [Hughes v. Rader, 183 Mo. 702; Hach v. Rollins, 158 Mo. 190.] 4th. The signatures of the attesting witnesses need not be preceded by any written or printed recital of the fact of attestation, which fact may be shown by evidence aliunde. [Berberet v. Berberet, 131 Mo. 399.] The testimony of one witness to that effect is sufficient to show that the signatures of two witnesses were placed on" the will to attest it. Attestation may also be shown by proof of two signatures, coupled with evidence showing that they were written to attest the will by persons of those names. [Lorts v. Wash, 175 Mo. l. c. 503; Craig v. Craig, 156 Mo. 361; Graham v. O'Fallon, 4 Mo. 601.] The record shows that the evidence given by the proponents of the will (defendants) tended to prove that the testator was of sound mind, cognizant of the natural objects of his bounty and of the property intended to be devised; that he signed the will with full knowledge of its effects as to the persons and property therein referred to; and that he intended in so doing to make and publish his will. As to its attestation, the .will shows the names of Badger and Roberts written under the word “Witnesses ; ’ ’ and the oral testimony tended to prove that each of these persons, at the request of the testator, through his interpreter, signed the instrument in his. [430] presence and in the presence of each other, and in order to attest it as his will. That the proof of these facts rested largely upon the testimony of the interpreter, Roberts, constitutes no objection to the competency of the evidence thus adduced. Eox it is a general* rule of law, that a sworn interpreter is a competent witness to .testify as to communications made to him in one language and translated by him into another, where he is shown to be acquainted with both languages and capable of speaking and understanding each of them. [1 Greenleaf on Evidence, (16 Ed.), sec. 183; Com. v. Vose, 157 Mass. 393.] Since the record in this case shows there was substantial evidence tending to prove the due and proper execution of the will in contest according to the statutory requirements and well-settled principles of law, it follows that the trial court did not err in submitting the ease to the jury under proper instructions. The verdict and judgment. sustaining the will are affirmed. Roy, G., concurs. PER CURIAM: — The foregoing report of the commissioners is hereby adopted as the opinion of the court.