dissenting.
I respectfully dissent. I would affirm the judgment of the court of appeals and admit to probate the will of Dr. Mabel Giddings Wilkin. Boren v. Boren, 402 S.W.2d 728 (Tex.1966), relied on by the majority, was a radical departure from Texas jurisprudence. It has led to harsh results and created a trap for the testator whose lips are forever sealed. The time has come to re-examine the hypertechnical compliance with the Probate Code as required by Boren.
The Probate Code sets out three requirements for a will which is not wholly in the testator’s handwriting: 1) The will must be in writing; 2) it must be signed by the testator in person; and 3) two credible witnesses over the age of 14 must attest the will by signing their names to it in the presence of the testator. Tex.Prob.Code Ann. § 59. Dr. Wilkins complied with all three. The uncontroverted testimony of the witnesses in this case discloses that they signed the third page of Dr. Wilkins’ will in her presence with the sole purpose of attesting the same. Yet the majority continues to follow the Boren line of Texas cases which nullifies wills where the witnesses sign beneath a self-proving affidavit, rather than beneath the will itself.
Since 1881, Texas courts have found that the location of a witness’s signature on a will is irrelevant. In Fowler v. Stagner, 55 Tex. 393 (1881), the court upheld a will where one witness had signed his name below a codicil only, rather than beneath the will. “It was not material, we think, in what part of the instrument they signed their names as witnesses, if that were done after the subscription and acknowledgment of it by the testator, and with the purpose *357of attesting it as subscribing witnesses.” 55 Tex. at 400. A witness in Franks v. Chapman, 64 Tex. 159 (1885), who was also the county clerk, signed his name to his official certificate, acknowledging the execution of the will. This did not affect the validity of the clerk’s signature as an attesting witness. Similarly, in Saathoff v. Saathoff, 101 S.W.2d 910 (Tex.Civ.App.— San Antonio 1937, writ ref’d) the fact that one witness signed as a notary beneath a notary public certificate did not nullify his signature.
The provisions for self-proof of wills was incorporated into the Texas Probate Code in 1955. Acts 1955, 54th Leg., p. 88, ch. 55. The first case to construe the self-proving provisions was McGrew v. Bartlett, 387 S.W.2d 702 (Tex.Civ.App. — Houston 1965, writ ref’d). Close on its heels came Boren v. Boren, 402 S.W.2d 728 (Tex.1966) which followed McGrew in denying probate of a will since the witnesses had signed beneath the self-proving affidavit rather than beneath an attestation clause.
I submit that the self-proving affidavit serves the same function as an attestation clause, i.e., that the witnesses, at the request and in the presence of the testator, have signed their names as witnesses to the testator’s will. This result is harmonious with the language in Section 59 of the Probate Code because that section requires only that the witnesses attest the will, it does not specify the location of their signatures, nor does it preclude the self-proving affidavit from fulfilling the attestation requirement.
Only one other state, Montana, has adopted the reasoning of Boren. Matter of Estate of Sample, 175 Mont. 93, 572 P.2d 1232 (1977)1. Oklahoma, Kansas and Florida have specifically held that Boren is not controlling in their states. In re Estate of Cutsinger, 445 P.2d 778 (Okl.1968); Matter of Estate of Petty, 227 Kan. 697, 608 P.2d 987 (1980); In re Estate of Charry, 359 So.2d 544 (Fla.App. 4th Dist.1978). The Oklahoma and Texas Probate Codes have virtually identical self-proving provisions; however the Oklahoma Supreme Court has held that the self-proof affidavit may serve as an attestation since the attestation “clause” of a will need not be in any particular form. In re Estate of Cutsinger, 445 P.2d at 782. Florida, in expressly rejecting the Boren line of cases stated, “The Texas view places form above substance and we decline to follow it.” In re Estate of Charry, 359 So.2d at 545. Even a Texas appellate court has noted its reluctance to follow Boren stating that it is “compelled to obey” the decision. Jones v. Jones, 630 S.W.2d 645, 648 (Tex.Civ.App. — Dallas 1980, writ ref’d).
The philosophy underlying the provisions on execution of wills in the Texas Probate Code is to allow every citizen the right and privilege of disposing of his property as he sees fit. Scheetz v. Bader, 251 S.W.2d 427 (Tex.Civ.App. — Galveston 1952, writ ref’d). This absolute right “would be a solemn mockery, if any mere arbitrary rules were suffered to frustrate and defeat that intention [of the testator].” Paul v. Ball, 31 Tex. 10, 13 (1868). I urge that the Texas cases beginning with McGrew v. Bartlett and Boren v. Boren have thwarted hosts of testamentary dispositions based on arbitrary rules of construction.
The present case makes even a stronger argument to uphold the will of Dr. Wilkins. The witnesses signed below the self-proving affidavit which was on the same page as the last article of Dr. Wilkins’ will. In Boren the affidavit and witnesses’ signatures appeared on a separate page. The witnesses’ signatures here are less than six inches beneath that of the testatrix, Dr. Wilkins. Had that six inches in which the self-proving affidavit is typed been left blank, there would be no dispute as to proper attestation. Here, there is clearly no evidence of fraud or undue influence to destroy the credibility of the witnesses’ attestation.
*358I would hold that a self-proving affidavit can satisfy the attestation requirements of Section 59 of the Probate Code, where, as here, witnesses testified unequivocally that they intended to attest the will of the testatrix. To hold otherwise is manifestly unjust. Boren v. Boren and its progeny should be overruled.
WALLACE and KILGARLIN, JJ., join in this dissent.
. An Arizona appellate court cites Boren; however the will failed in that case because the witnesses were not present when the testatrix signed her will as required by the Arizona statute. Matter of Estate of Mackaben, 126 Ariz. 599, 617 P.2d 765 (Ariz.App.1980).