concurring. This case is closer than the majority opinion suggests. Absent evidence of fraud or undue influence, neither of which is even argued here, our tendency has been to relax technical requirements so as to implement the testator’s intent. See, Note, 4 U.A.L.R. L.J. 139 (1981).
In Green v. Smith, 236 Ark. 829, 368 S.W.2d 280 (1963), we held that we interpret the provisions of Ark. Stat. Ann. § 60-403(3) and (5) to be mandatory in requiring a minimum of three subscribing witnesses to make the will in question valid. Quoting Ash v. Morgan, 232 Ark. 602, 339 S.W.2d 309 (1950) we said:
It is essential to due execution of a will, that it be signed or subscribed by the number of witnesses required by the law governing the particular will being made, and subscription by fewer renders the transaction a nullity.
We stated in addition that parol evidence of the scrivener in that case could not supply the deficiency of the required additional witness’s signature. The will in question had only been signed by two witnesses below the mark of the testator. The case was reversed because the probate judge had admitted the will to probate. We followed Green v. Smith, supra, in Priola v. Priola, 237 Ark. 798, 377 S.W.2d 29 (1964), and Patrick v. Rankin, 256 Ark. 310, 506 S.W.2d 853 (1974). We invalidated the will in Priola v. Priola, supra, where there were only two subscribing witnesses and upheld the will in Patrick v. Rankin, supra, where the mark was witnessed and two others witnessed the will.
My only reason for agreeing with the result reached here is that the third signature, that of Jerry Mazzanti, expressly purported to acknowledge only the signature of the other witnesses and not the mark of the decedent. Had he simply placed his name on the will as a witness, I would have agreed with the trial judge.
Holt, C.J., joins in this concurrence.