Duffie v. Corridon

McCay, J.

The will in this case was read over to the testatrjx, and was signed by three witnesses, but not by the testatrix. This, as we suppose, was a mere mistake, but it does not appear whether they thought this was sufficient, or whether the failure of Mrs. Corridon to sign was a pure accident. At any rate, when, next day, it was noticed that the testatrix had not signed, the scrivener procured two of those who had already signed, and a third, and the testatrix signed the will in the presence of these three. The now man signed his name, and the two others aeJmowledgecl their signatures made the day before. Was this a sufficient signing and attestation under the statute? The words of our Code, section 2379, are as follows: “All wills, (except nuncupative wills,) disposing of realty or personalty, must be in writing, signed by the party making the same, or by some other person in his presence, and by his express directions, and shall be attested and subscribed in the presence of the testator by three or more credible witnesses.”

Section 2370 provides “that a witness may attest by his .mark, provided he can swear to the same, but one witness cannot subscribe the name of another, even in his presence and by his direction.”

Nothing is better settled than that a will, to be good, must be executed precisely according to the statute. Wills divert the property of the testator ,out of the channel fixed by law, and the law permitting this to be done must be followed. What is it the witnesses to a will attest? Principally the signature. The witnesses need not know the contents of the *125 will. The testator may merely acknowledge his signature before them, or may sign it, without saying to them it is his will. Any other fact in relation to the will, as the sanity of the testator, his knowledge of the contents, his intelligent assent to the will, may be proven by other witnesses. The signature is the only fact which must be proven by the chosen witnesses. When, therefore, the statute says the will must be signed, and attested and subscribed by three- witnesses, the inference is strong that the meaning is, that the fact of the signing must be attested by three witnesses, and that they must subscribe as an evidence of their attestation to the signature. Was that done in this case ? Two of these witnesses did not subscribe, as an evidence of their attestation, to the signing by the testatrix. Their signatures were subscribed as an evidence of what? That the testatrix consented to the will, knew its contents, but they were not subscribed as an attestation of the signature of the testatrix; and that is the very thing, the only thing, the'statute requires of the witnesses. As -we have said, every other fact may be proven by other witnesses. But this-fact, tó-wit: the signature of the testatrix, can only be proven by the subscription of the witnesses. Section 2380 of the Code declares that one witness cannot subscribe the name of another, even in his presence and by his direction. He must subscribe it himself. Does not this clearly indicate that the manual act of subscription by the witness is necessary ? In our judgment, therefore, the witness must subscribe as an attestation of the fact he is called on to attest, to-wit: the signature of the paper by the maker of the will.

It is said that the testator may acknowledge a previous signature. This is expressly provided for by section 2383 'of our Code, and was also the common law. But it will be noticed that both the Statute of Frauds and our law allow the testator’s signature to be made by a third person if it is done in the testator’s presence and by his expréss direction. And under such a law it might well enough be held, that if the testator, in the presence of the witnesses, acknowledged the signature, it was sufficient. But no such permission is *126 grained to the witnesses. The Statute of Frauds, it is true, says nothing on the subject,'but our Code, section 2380 expressly says that the witness must subscribe his own name, or make such a mark as he can swear to, and that he can not authorize another to write his name.

There seem to be no English cases on this question previously to our adopting statute. Several cases have, however, arisen under the Act of 1st Victoria, chapter 28, section 9. See Red field on Wills, 1st volume, 228, 230, and cases cited there. - In these cases it is, in substance, held that the acknowledgement, by a witness, of his signature previously made, is not sufficient. Some American cases are the other way, and Mr. Redfield thinks they are right upon principle : ’ Red. on Wills, 1 vol., 230.

It was said in argument that the English cases turned upon the words of the Statute of Victoria. But those words are, and “ such witnesses shall attest and subscribe the will.” The English statute, too, it was said, expressly authorizes the testator to acknowledge the signature, but is silent as to the right of the witnesses to acknowledge. Our. Act is precisely so: .See section 2383 of the Code. The truth is, the witnesses to a will, ,as subscribing -witness, attest the signature, and nothing else. Any other fact, as we have said, may be proven by other witnesses. These two witnesses did not attest and subscribe in the presence of the testator the signatu/re of the testator. Their subscription was to the fact of her knowledge of and consent to the will. This was insufficient. Her signature was necessary. This they did not attest and subscribe. Can the acknowledgement one makes of a signature give to that signature an attesting power more or greater than it had when it was subscribed ? It is admitted that it was subscribed as an attestation only of facts which were not sufficient in law to make'a good will. Can the acknowledgement of the signature make it the evidence of a fact which occurred after it was put to the will?

We think, both upon principle and authority, the Court below was right, and we affirm the judgment.