Hall v. Hall

Putnam J.

delivered the opinion of the Court. It was objected that the testimony of Keith Bassett, which was offered by the appellants, was improperly rejected on the ground of his being interested. It was argued that the in terest should be certain, and that it was altogether uncertain whether Bassett’s wife would ever be benefited by the former will. It might not be proved. But if the last will should be proved, it would operate as a revocation of the former will, and no other will of the testatrix could ever be proved. If the last will should be disallowed, then the witness would have an opportunity to prove the former will, which contains the devise and legacy to his wife. We think this witness was directly interested in the event of the cause, and properly rejected.

The objection of the appellants, that the former will ought not to have been submitted to the jury, we think ought not to prevail. It was read to the testatrix at the "time of the exe-. cution of the last will, and forms an important part of the res gestee.

And we cannot suppose that the records of the probate office showing that the testatrix had derived a large property from her brothers, and that she died possessed of little property, had any tendency to show that the testatrix was of an unsound mind ; for riches are not always gathered by men of understanding, but time and chance happen to all. If there had been an offer to prove any particular act of folly, as, for example, that the testatrix threw her money into the dock under a belief that it would there vegetate and give her a great increase of wealth, it would have been competent evidence. But the fact of a mere diminution of the property of the testatrix, was not competent evidence to prove a deficiency of a sound and disposing mind.

The important question is, whether the instruction of the chief justice to the jury was correct, and if so, whether the jury were warranted from the evidence to find a verdict establishing the will.

The statute of 1783, c. 24, § 2, is copied from St. 29 Car. 2, c. 3, § 5, with one immaterial variation. The statute of Charles requires the attestation of three or four credible witnesses, and the statute of 1783 requires three or more. The statute provides, that “ all devises and bequests of any lands or tenements shall be in writing, and signed by the party so devising the same, or by some person in his presence, and by his express direction, and shall be attested and subscribed in the presence of the said devisor, by three or more credible witnesses, or else shall be utterly void and of no effect.” It must be presumed that our statute was adopted with a full knowledge and approbation of the construction which had been given to the statute of Charles by the English courts.

The witnesses must attest to the signing of the will. They must have knowledge of that fact in some manner. If they saw the testator actually sign the will, there could be no doubt; and there would be as little if the testator acknowledged his signature to the witnesses. And it was held a long time before the American revolution, that it was sufficient that the testator should own his signature to the witnesses. The signature may have been put by some person by the express direction of the testator. If the testator should exhibit the will with such adopted signature and declare to the witnesses that it was his will, they might legally subscribe and attest it as such.

It has been decided, Jones v. Lake, 2 Atk. 177, note, that if a testator executes the will in the presence of two witnesses who attest it, and afterwards goes over his name with a pen in the presence of a third, this is a good execution. Now the going over the signature with a dry pen, is but a significant act denoting a recognition and acknowledgment of the signature of the testator. If he did or said any thing which clearly manifested his adoption of the signature as his own, it would seem the witnesses might well attest to the will.

This is substantially what was contained in the charge of the chief justice. The witnesses need not actually see the testator sign, but if the signature be acknowledged by the testator to be his, it is sufficient.

But it was argued, that when the testatrix was asked by the scrivener if that was her signature, she made no answer ; so that she never has acknowledged or owned her signature ; that there was proof of publication, but not of signing. Taking the whole of that transaction together, it seems to us, that when the will was again shown to the testatrix, and she looked earnestly upon it, she was surprised to be called upon again to do what she supposed she had just before already done. But the scrivener proceeded to explain the matter to her, and she seemed to understand, and on being asked immediately after-wards if “ she published that as her last will and testament,” she said that she did. Now if the testatrix recognised the signature and acknowledged, in the presence of the last witness, Mary Bump, that it was her will, it necessarily amounted to an acknowledgment of the signature. It could not be a will without. The name of the testatrix was affixed to it, she examined it attentively, and then published it as her last will and testament.

There is no doubt of the identity of the paper, and we all think that there is no doubt but that the jury ought, from the evidence, to have found that the will was properly executed.

The appellants are not to take any thing by the motion foi a new trial.

Decree of the judge of prohate affirmed, and proceedings remitted accordingly.