Dewey v. Dewey

Dewey, J.

The only question raised in this case is, whether this will was duly attested.

The provisions of the English statute of 29 Car. II. c. 3, § 5, requiring that “ all devises of lands shall be attested and subscribed in the presence of the devisor by three or four credible witnesses, or else shall be utterly void and of no effect.” were *352 adopted as a part of our code, by the provincial act of 1692, and in similar language. The statute of 1783, c. 24, § 2, again reenacted the same provisions, with no other change but that of using the phrase “ three or more witnesses ” for “three or four witnesses ” ; and this statute remained in force till the passing of the Rev. Sts. c. 62, § 6, which, although somewhat changing the phraseology, and rendering the language more concise, does not, in any degree, vary the requirements as to the attestation of the witnesses ; the principal changes introduced being those requiring the same solemnities in the disposition of personal and real property, and in restricting within much narrower limits the right to make nuncupative wills.

Under this long continued and substantially uniform legislation on the subject of the execution of wills, the construction of those statutes, as to the acts necessary to constitute the due execution of a will, have, to a considerable extent, become well settled. It is not required that the testator should sign his name to the will in the presence of the attesting witnesses. The term “ attested,” as used in the statute, does not import that it is requisite that the witnesses should see the very act of signing by the testator. The acknowledgment by the testator, that the name signed to the instrument is his, accompanied with a request that the person should attest as a witness, is clearly sufficient. Stonehouse v. Evelyn, 3 P. W. 254. Grayson v. Atkinson, 2 Ves. sen. 456. So a deck ration by a testator, before the witnesses, that the paper is his will, is sufficient to authorize their attestation to it, and to maze it a good will. Ellis v. Smith, I Ves Jr. 11. Westbeech v. Kennedy, 1 Ves. & Beames, 362. Nor is it necessary to the due execution of a will, that the attesting witnesses should be all present at the same time, but a will attested by three witnesses, who at different times subscribe their names as witnesses, at the request of the testator, is well attested. Cook v. Parsons, Pre. Ch. 184. Cruise’s Digest, Tit. 38, c. 5, §§ 35, 36. 3 Bur. 1775 , per. Lord Mansfield. So the provision, that the instrument shall be attested by three witnesses “ in the presence ” of the testator, has been liberally construed ; it being held sufficient evidence of *353 the presence of the testator, if the facts show a possibility of his seeing the witnesses subscribe their names, unless controlled by other evidence showing that in fact he did not see them, and that therefore it was not done in his presence. Longford v. Eyre, 1 P. W. 740. Casson v. Dade, 1 Bro. C. C. 99. Winchilsea v. Wauchope, 3 Russell, 443.

A construction alike liberal has been given as to the attesting witnesses’ knowledge of the signature of the testator. Thus in White v. Trustees of the British Museum, 6 Bing. 310, and in Wright v. Wright, 7 Bing. 457, it was held that a will subscribed by three witnesses, in the presence and at the request of the testator, was sufficiently attested within the statute, al • though none of the witnesses saw the testator’s signature, and only one of them knew what the paper was. A similar decision was made in Johnson v. Johnson, 1 Crompt. & Mees. 140. It was said by the court, in the first of these cases, that any declaration before the witnesses, by the testator, that it is his will, is equivalent to an actual signature in their presence, and makes the attestation and subscription of the witnesses complete. Tindal, C. J. said that “ in the execution of wills, as well as of deeds, the maxim will hold good, non quod dictum, sed quod factum est, inspicitur.”

The only inquiry, therefore, as it seems to us, is, whether upon the evidence, in the present case, it may be reasonably inferred that the testator signed his name to the instrument, as and for his will, and that he acknowledged that fact to the witnesses, either directly, or by acts equivalent to an acknowledgment. Hall v. Hall, 17 Pick. 373 .

The testimony of Medad Fowler is wholly deficient as proving the due execution, except so far as the inference is to be drawn from the fact of his name, under his own proper signature, being borne upon the instrument under the usual certificate of attestation. But the question is not whether this witness now recollects the circumstance of the attestation, and can state it as a matter within his memory. If this were requisite, the validity of a will would depend not upon the fact whether it was duly executed, but whether the testator had been fortunate in *354 securing witnesses of retentive memories. The real question is, whether the witness did in fact properly attest it. The deposition of Josiah Fowler, who signed his name as a witness at the same time, supplies, however, some omissions in the testimony of Medad Fowler, and establishes the fact that at that time the testator called the paper his will, and requested them to sign it as witnesses. This witness, however, does not recollect seeing any writing upon the paper he signed. But the remaining witness, Silas Root, whose name appears upon the will, and apparently subscribed after the others, fully establishes similar declarations from the testator as those stated by Josiah Fowler, as to the fact that the testator declared to him that he had a will, and wished him to put his name, to it as a witness ; and he states that he looked at it in the house, and that the testator’s name was then on it, but that he did not inquire whether it was the testator’s signature — leaving the inference properly to be drawn that he saw the name of the testator duly subscribed to the will. Certainly the presumption, arising from all the facts that appear in the case, is very strong that the wdl was subscribed by the testator before it was attested by the witnesses. The signature of the testator is admitted to be a genuine signature, and the certificate of attestation assumes that it had been already signed. The purpose of procuring the attestation of the witnesses was to give effect to the instrument as a valid will. It can hardly be supposed that the testator, who was by his own active agency procuring the authentication of the instrument by the requisite witnesses, would have omitted the first step necessary to its due execution, viz. the signature by himself.

It seems to us, upon the whole evidence, that the will was duly signed by the testator, and being thus signed, he by his acts, if not by his declarations, sufficiently recognized and acknowledged his own execution of it to authorize the three witnesses to attest and subscribe the same as witnesses thereto, in accordance with the provisions of the statute.

The decree of the judge of probate, allowing the probate of the will, is therefore affirmed.