Pope v. Rogers , 93 Conn. 53 ( 1918 )

Upon its face the paper is a valid will, and the facts necessary, under the circumstances of this case, to prove its due execution, were correctly stated by the court in its charge to the jury. They are, first, that the paper, Exhibit A, contained all the typewritten matter now on it when signed by the testator and the witnesses; second, that the signature of the testator was, on Exhibit A, as it now appears, when the witnesses signed it; third, that the witnesses saw the signature of the testator on the paper at the time they signed it; and fourth, that the testator informed the witnesses (who did not see him write it) that the signature was his own.

The burden of proof was on the proponents to establish these facts, but they were not bound to establish them by the testimony of the subscribing witnesses, and they were not bound to prove them beyond a reasonable doubt. All that was necessary was that upon the whole proof it should reasonably appear more probable than otherwise that the instrument was executed in the manner required by the statute.

The first requirement stated by the court was sufficiently evidenced by the appearance of the paper, which shows conclusively that the typewritten lines prepared for the signatures of the testator and witnesses were on the paper before they signed it; and the appearance of the folds indicates that the rest of the typewritten matter was placed on the paper before it was folded, and before the testator unfolded it for his own signature and for the signatures of the witnesses. The adjustment of the rest of the typewriting to the lines left for signatures, and the extreme improbability of four persons writing their names on a blank piece of paper without any comment being made at the time, are also proper considerations for the jury.

The second requirement was met by the testimony of the two girls who saw the testator unfold the paper and write something on it before he presented it for the signatures of the witnesses. As every other stroke of handwriting on the paper is otherwise accounted for, the only thing the testator could have then written on it, was his own signature as it now appears thereon.

And since the signature was there when the witnesses signed their names as witnesses in close proximity to it, the jury may well have refused to believe that they did not then see it. Their whole testimony was discredited, so far as the accuracy of their present recollection was concerned, by an affidavit executed when the paper was first offered for probate, in which they stated under oath that they saw the testator sign the paper, that he declared it to be his last will, and that they signed it as witnesses in his presence and at his request.

The fourth requirement, that the testator must have informed the witnesses that the signature on the paper was his own, is fairly satisfied by the testator's declaration that the paper was his will. Under the circumstances, this statement was a sufficient declaration to the witnesses that the signature which they had just seen and witnessed was his own.

For these reasons the motion to set aside the verdict was properly denied.

The assignments of error based upon alleged errors and omissions in the charge of the court, are overruled. The law, so far as it is applicable to this case, is fully and correctly stated in the four propositions already discussed, and in this and other respects the court charged the jury in accordance with the substance though not the language, of the contestants' requests to charge.

There is no error.

In this opinion the other judges concurred.