Elston v. Price , 210 Ala. 579 ( 1923 )

The court below sustained the contest to the alleged will of Susan E. Price upon the ground the instrument offered for probate had not been attested by two witnesses, as required by our statute: Section 6172, Code 1907. Under this statute the instrument here in question to be effective as a will must have been "attested by at least two witnesses, who must subscribe their names thereto in the presence of the testator." Unless this requisite of the statute was complied with, the instrument was ineffectual to pass real or personal property. Woodruff v. Hundley, 127 Ala. 640, 29 So. 98, 85 Am. St. Rep. 145; Blacksher v. Northrup, 176 Ala. 190, 57 So. 743, 42 L.R.A. (N.S.) 454.

Statutes of this character are enacted for the purpose of removing uncertainty as to the execution of wills and safeguard testators against frauds and impositions. Riley v. Riley,36 Ala. 496; Brengle v. Tucker, 114 Md. 597, 80 A. 224; Dawkins v. Dawkins, 179 Ala. 666, 60 So. 289.

In Riley v. Riley, supra, it was held that one subscribing witness could not write the name of another subscribing witness, when the latter was able to write and does not physically participate in the signing, and thus bring the execution of the instrument within the statute. Speaking to this question the court said:

"To hold that these facts amounted to a valid execution and attestation of the will, would certainly weaken the safeguards against frauds and forgeries, which it was the purpose of the statute to provide. It is manifest that the signatures of the witnesses, written by themselves, furnish a reliable foundation for those legal presumptions in favor of the due execution of a will, which arise upon proof of the handwriting of the witnesses, when they are dead or out of the State. We think we consult sound public policy in deciding, that one of the subscribing witnesses to a will cannot sign the name of another who is himself well able to write, and who does not physically participate in the act of signing."

The cases of Riley v. Riley and Dawkins v. Dawkins, supra, are cited by way of illustration of the importance with which the court has viewed the compliance with the statute and the reasons therefor, though they bear no close analogy to the question here presented.

In discussing a statute of similar character, and calling attention to the fact that a will to be duly authenticated must be both attested and subscribed, the Supreme Court of New Hampshire, in Tilton v. Daniels, 79 N.H. 368, 109 A. 145,8 A.L.R. 1073, makes use of the following quotations and definitions, which are here in point:

"Attestation 'consists in the witnesses seeing that those things exist and are done which the statute requires.' * * * 'Attestation is the act of the senses; subscription is the act of the hand; the one is mental; the other mechanical.' * * * To attest the signature means to take note mentally that the signature exists as a fact. If this is done, and the attestor also subscribes his name, the statute is complied with. The essential thing is that 'by the signature he meant to affirm that the deceased executed the will in his presence.' "

In Smith v. Buffum, 226 Mass. 400, 115 N.E. 669, L.R.A. 1917D, 894, the Massachusetts court, speaking to a like question, said:

"Subscription applied to the witnessing of wills has been interpreted in England to mean the attachment to the instrument of any identifying writing with the purpose of identifying thereby the paper as the one signed by the testator and attested by the witness."

Numerous cases bearing upon this question may be found cited in the note to Tilton v. Daniels, supra, but to review each of the authorities would extend this opinion to undue length.

The authorities are agreed that it by no means follows that a person did not sign as a witness to a will because he also intended his signature to serve another purpose. 1 Jarman on Wills, 119. See, also, Keely v. Moore, 196 U.S. 38,25 Sup. Ct. 169, 49 L.Ed. 376. This is also illustrated by some of our decisions wherein defective acknowledgments to instruments have been given the force of attestation as a subscribing witness. Decisions of this character are without influence upon the present appeal.

We have quoted from Tilton v. Daniels, supra, that the essential thing is that by the signature the witness meant to affirm the deceased executed the will in his presence. From the undisputed proof in this case this cannot here be said. The instrument offered for probate was signed by Susan E. Price, and attested by Mrs. Hudson. Dr. Caffey was not requested to sign this instrument as a subscribing witness. He was there for the purpose of certifying as to the sanity of the testatrix. The certificate was written by Mrs. Hudson, was on a separate piece of paper, and not attached to the instrument offered for probate. It is quite clear from the undisputed proof that all the parties were entirely unaware of the requirements of the statute for the execution of a valid will, and that it occurred to no one present there existed any necessity for Dr. Caffey to attest the instrument offered for probate as a subscribing witness. He fully met the purposes of his visit by the execution of the certificate as to sanity, and we think it quite clear that his signature to the certificate under the circumstances here shown, cannot upon any reasonable grounds be construed to the effect that Dr. Caffey meant thereby to affirm that the deceased executed the will in his presence.

We have examined with care the authorities cited by counsel for appellant, among them Williams v. Spender, 150 Mass. 346,23 N.E. 105, 5 L.R.A. 790, 15 Am. St. Rep. 206; Keely v. Moore, supra; Kyle v. Jordan, 187 Ala. 355, 65 So. 522; Shirley v. Ezell, 180 Ala. 352, 60 So. 905; but find nothing in them which militates against the conclusion which we have here reached.

We are of the opinion that the court below correctly ruled in sustaining the contest and dismissing the petition; and the judgment rendered will be accordingly here affirmed.

Affirmed.

ANDERSON, C. J., and SAYRE and MILLER, JJ., concur.