* Headnote 1. Wills, 40 Cyc., pp. 1102, 1108, 1128. This is an appeal from the chancery court of Washington county. The question involved is the validity of the last will and testament of Mary James, deceased. Appellants Richard and Jake Gordon are contesting its validity. Appellees Sam Parker and Bertha Roberson are defending it. The trial court rendered a decree upholding the validity of the will, from which appellants prosecute this appeal.
The will in question is not holographic. It was written by another than the testatrix, and its execution and publication was attested by two subscribing witnesses, the minimum number required by our statute. The case was tried on an agreed statement of facts substantially as follows: One subscribing witness signed the attestation paragraph following the signature of the testatrix before the will was signed by the testatrix. The other subscribing witness signed after the testatrix had signed the will. The testatrix signed and published the will in the presence of the subscribing witnesses, and they attested the same in the presence of the testatrix and in the presence of each other. The signatures of all were *Page 342 continuous and constituted one transaction until completed.
If the will be invalid, it is because one of the subscribing witnesses signed the will before the testatrix signed her name. Section 5078, Code of 1906 (section 3366, Hemingway's Code), provides, among other things, that wills shall be in writing, and if not wholly written and subscribed by the testator or testatrix they shall be attested by two or more credible witnesses in the presence of the testator or testatrix. There is a division among the courts on this question. There is ample authority supporting either view. The courts adhering to the rule that the statute of wills should be construed strictly hold that the signing of the will by the testator must precede attestation and subscription by the witnesses, although part of the same transaction. 40 Cyc. 1102; 1 Underhill on Wills, p. 266, par. 95; 28 R.C.L. p. 128, par. 83. The authorities to the contrary hold that where the signing and publication of the will by the testator, and the signing by the subscribing witnesses, is all one continuous transaction, each signing in the presence of the others is sufficient, and the will is valid notwithstanding a subscribing witness may sign the will before the testator does. In the case of Horn's Estate, 161 Mich. 20, 125 N.W. 696, 26 L.R.A. (N.S.) 1126, 20 Ann. Cas. 1364, the authorities holding the latter view are referred to and reviewed. The question has never been decided by this court. It is therefore one of first impression in this state. However, our court has adopted a liberal construction of our statute of wills favorable to the upholding of wills so far as their execution and the formalities attending the same are concerned. Heatherington v. Pipes, 32 Miss. 451; Fatheree v. Lawrence, 33 Miss. 585; Murray v. Murphy, 39 Miss. 214;Walker v. Walker, 67 Miss. 529, 7 So. 491; Miller v.Miller, 96 Miss. 526, 51 So. 210; Armstrong v. Walton,105 Miss. 337, 62 So. 173, 46 L.R.A. (N.S.) 552, Ann. Cas. 1916E, 137; Bolton v. Bolton, 107 Miss. 85, 64 So. 967. *Page 343
The courts holding to a strict construction of the statute proceed on the theory that there can be no attestation of the fact of the signing and publication of a will by the testator until such signing and publication have actually taken place; that the subscribing witnesses are supposed to sign attesting an act which has already taken place, and not one to be performed in the future. There is, of course, a good deal of force in that position. The contrary view, however, is, and we think it supported by the better reasoned cases, that where the execution of the will by the testator and the signing of the same by the subscribing witnesses constitutes one continuous transaction, the signing by each, taking place in the presence of the others, is sufficient and is to all intents and purposes an attestation by the subscribing witnesses to a fact which has already taken place. In other words, that under those circumstances the time intervening between the placing of the different signatures to the will is not to be considered; it is too short for the law to take notice of. The statute of wills is a statute of frauds. One of the reasons wills are required to be in writing, and when not holographic to be attested by two subscribing witnesses, is to prevent frauds and perjuries. Where the execution of a will is all one continuous transaction to make the validity of the will dependent upon the testimony of bystanders that one or more of the subscribing witnesses signed the will after the testator had signed, it seems would open the door to frauds and perjuries. We are decidedly of the opinion the better view is that where the execution and publication of a will by the testator or testatrix and its attestation of the subscribing witnesses is one continuous transaction, the will is valid, notwithstanding the subscribing witnesses may sign their names before the testator does. *Page 344