It is sufficient that an attesting witness to a will makes his mark. This was an application to prove the last will and testament of Etheldred Pridgen, deceased, in solemn form, which was resisted by the next of kin of the deceased, and an issue of devisavit vel non had been made up in the County Court of Columbus and sent into this Court for trial. Upon the trial one of the subscribing witnesses proved the execution and publication of the will, and it appearing that the other witness had made his mark and was not an inhabitant of the State, the executor proposed to prove by the first witness that he saw the other witness make his mark in the presence of and at the request of the testator (which was a common cross mark, as is usually made by an illiterate person). This was objected to by the caveators, but admitted by the court, whereupon the witness swore that at the same time at which he signed the will as an attesting witness, the other witness was called on by the testator to witness his will; that the deceased knew what the will contained, and declared it to be his last will and testament, and that he saw the other make his mark. *Page 179
There was a verdict and judgment for the propounders, from which the caveators appealed. It is unnecessary to say what would be the judgment (260) of the Court upon the question presented in this case if it wereres integra. We do not consider it an open question, but one settled by a course of decisions, and not now to be disturbed. Our statute of 1784 is, so far as this question is concerned, the same with the English statute of frauds, of 29 Charles II. The latter directs that all devises of lands and tenements shall be in writing, and signed by the testator, etc., and be subscribed in his presence by three or more witnesses. The same words are used in the act of 1784, as to the act of the testator in executing the will, and as to that of the witnesses in attesting it. The first is to sign it and the others are to subscribe it. The fourth year after the passage of the Statute of Charles, Lemange v. Stanly, 3 Levins, 1, was decided; and although it turned upon another question, yet a majority of the Court decided that the word signum meant no more than a mark. This is a leading case, showing that, although the statute required the testator to sign the paper, yet, by making his mark, it was complied with. A testator, then, by making his mark, satisfies the requirement of the law. This is admitted in the argument. But it is urged that, although the mark made by a testator is within the act, yet a different word is used as to the attestation of the witnesses, to wit, the word "subscribe." That phraseology, it is true, is used, but we cannot perceive the necessity of altering the construction. Both expressions are used with the same view and to the same end — to protect testators from frauds. The words are nearly convertible terms. Mr. Bailey defines a sign to be a sensible mark or character — a subscription of one's own name; and to subscribe, to set one's hand to a writing. If, then, the statute is, on the part of the testator in this particular, complied with by making his mark, why is it not satisfied by the witnesses making their mark? The inconvenience and danger of defeating wills by allowing witnesses to attest them who cannot write have been strongly urged in the argument. On (261) the other hand many evils might grow out of a rule confining the attestation to those only who can write. But, as before remarked, the question is not considered an open one. The opinion expressed by LordHardwick in Ellis v. Smith, 1 Ves., Sr., 17, has always struck me with great force. "I think," says his lordship, "that where things are expressly required by a statute, courts are not to say other things shall be equivalent to them; but I also think authorities established are so many laws, *Page 180 and receding from them unsettles property, and uncertainty is the unavoidable consequence. To the maxim of Lord Bacon, that not the decision, but the ground on which it stands, is to be regarded, I shall oppose the saying of Lord Trevor, a man most liberal in his constructions, that many uniform decisions ought to have weight, that the law may be known; and, to gratify private opinion, established opinions are not to be departed from." Mr. Phillips, 1 Ev., 500, says an attestation by a mark has been adjudged a sufficient subscription within the statute. And Mr. Chitty, in his notes to 2 Bl. Com., 378, recognizes the doctrine.Harrison v. Harrison, 8 Ves., 185, is to the same purpose. That was a bill in equity by the devisees against the heirs. The will had three witnesses, only one of whom subscribed his name; the other two made their marks. It was held by the chancellor, Lord Eldon, to be sufficiently attested, upon the authority of a case (Gurney v. Corbit) tried in the Common Pleas, upon a case agreed, when it was adjudged that an attestation by a mark was sufficient; and the chancellor observes, "Mr. Sergeant Hill says there have been a great many other cases." This case was succeeded by that of Addy v. Grix, 8 Ves., 301, decided by Sir WilliamGrant, Master of the Rolls. In Iredell on Executors, 16, the same doctrine is stated. In New York, where the Statute of Charles has (262) been adopted, the same principle of construction has prevailed. 1 Johns., 144; Jackson v. Vanderson, and 9 Cow., 94, Jackson v.Phillips. The law must be considered as settled; and in this State I do not know that it has ever before been questioned; and I think I may safely say a very large portion of the wills that have been admitted to probate have been attested by markmen. It will not do to unsettle the law, upon the ground that the able men who have heretofore adjudged it were mistaken.
PER CURIAM. No error.
Cited: Devereux v. McMahon, 102 N.C. 286; In re Pope, 139 N.C. 486.