Armstrong v. Walton

1. Insurance. Designation of beneficiary. Wills. Execution. Signing by another. Place of signing. Code 1906, section 5078. The right of a member of a benefit society in the amount agreed to be paid in the certificate at his- death, is simply the power to appoint a beneficiary and the rules and regulations of such society, such as may be contained in the constitution or charter and by laws,' are the foundation and source of such power. 2. Same. Where such is the plan of the association the designation of a beneficiary may be made by will. 3. Wiles. Execution. Place of signing. Code 1906, section 5078. Under section 5078, Code 1906, providing that a will must bo signed by the testator’ or some person in his presence and by his express direction, and if the will is not wholly written and subscribed by the testator, then it shall be attested by two or more credible witnesses, etc., the signature of the testator need not be at the end of the will but may be at the beginning. 4. Same. Nor need such signature be by the testator but may be by some other person in his presence and by his express direction. 5. Same. "Where a testator being unable to write requested another to write his will in his presence which was accordingly done the testator’s name nowhere appearing except at the beginning of the will and the same being properly attested and handed back to the testator, all parties understanding it to be a completed instrument, held that this was a sufficient signing by the testator.

Appeal from the chancery court of Monroe county. Hon. J. Q. Eobins, Chancellor. Suit by Harriet Armstrong Walton and others against Mary Lou Armstrong. From a judgment for plaintiffs, defendant appeals. The facts are fully stated in the opinion of the court. We contend that the will on the hack of the certificate is such a will as entitled it to probation under the laws of this state. The court has this original will here-for inspection and we respectfully request the court to examine the same. Your Honors will see that the will is complete and regular in every respect with the exception that the deceased’s name is signed at the beginning of the will and not at the end of said will. The certificate of the witnesses is in accord with the requirements of our law. The court will further observe from an inspection of this will that in the beginning of the will there is a blank space as follows, “I-,” etc. It was in this blank space that the name of John Armstrong was signed by one of the attesting witnesses. The testimony shows that the deceased John Armstrong was nnable to read or write. The testimony further shows that the signature was placed in the blank space in the beginning of the will by one of the witnesses who thought it was the correct'place to sign deceased’s name. The testimony further shows that the testator came to the two subscribing witnesses who were officers in the Masonic Benefit Association and requested them to make out his will so that the proceeds of this certificate would go to the appellant. The testimony further shows that the deceased and the two subscribing witnesses sat down at a table and the will was “made out” payable to the appellant and that the witnesses signed their names thereon in the presence of the deceased and in the presence of each other; the deceased having previously requested one of the witnesses to make out his will and assenting to the manner in which the will was made out and assenting to the signing of the same by the witness. We respectfully submit that all the requirements of the law were therefore complied with by these negroes. The court must bear in mind the fact that the deceased was an ignorant, illiterate negro; that the negroes who made out his will substantially complied with the law in every respect. It cannot be urged that the mere fact that the deceased’s name was not signed at the bottom of the will invalidates the will; because of the fact that the deceased’s name was signed at the top of the will with the intention of making his signature to the will. In this state the place of signature to a will is immaterial; it may be signed at the top, bottom or at the side of the will. Our law merely says it must be signed; not subscribed. Section 5078, Code of 1906; section 4488, Code of 1892. Of course a holographic will must be subscribed as provided for in the above sections. But the will before this court in the case at bar is not a holographic will; it has been held throughout the United States that a ydll may be signed at any place on the will provided there is no' statute to the contrary. In the states where the place of signature is not designated by statute the rule established is substantially that adopted under the English Statutes of Fraud; upon which such acts are based and the place of signature is of secondary consequence provided where ever the testator may have chosen to place-his name he meant it to stand for his final signature and thereby authenticates the entire instrument as propounded. ’ ’ 29 Am. & Eng. Ency. of Law, 160-161. See,, also, the following authorities, to-wit: Schouler on Wills (2 Ed.), par. 312; Hall v. Hall, 17 Pick. (Mass.) 373; Ramsey v. Ramsey, 3 Grat. (Ya.) 664; 70 Am. Dec. 438; Upchurch v. Upchurch, 16 B. Mont. (Ky.) 102; Kirkpatrick's Will, 22 N. J. Eq. 463; Armstrong v. Armstrong, 29 Ala. 538. In this latter case it is also held that the testator’s name at the beginning of a will dictated by himself, is to be regarded as a sufficient signing by another at his request. In our own state there has been no direct decision on this point but it has been held, and it is an analogous case that it didn’t matter where the signature of the subscribing witnesses of a will appeared just so the signatures were upon the paper and made in the presence of the testator. See Elisabeth J. Murray v. J. Murphy, 39 Miss. 214; Fatheree v. Lawrence, 33 Miss. 585. So we respectfully submit that this will did not have to be signed at the physical end to comply with our law. Here we have then this will signed by the witness for the testator With the signature in the blank space at the beginning of the will; we have the attention of the subscribing witnesses in the presence of the testator and of each other; what else then could be urged against the validity of this will? Counsel for appellee contend that the mere fact that the testator failed to use the words “sign my name” and the mere fact that the testator failed to request the witnesses to sign the same, that this. invalidates this will. What were the attending eircum-.stances, we ask? Here is a negro, unable to read or write, unlearned, but filled with the desire to will the pro-needs of the certificate to his wife, the appellant; he goes to the officers of his lodge and requests them to make ont his will so that his wife, the appellant, would be the beneficiary. This negro did not know he had to request them in so many words to sign his name and witness the will; lint he told them to do all that was necessary and when the will was signed and attested he adopted it as his will. There is abundant proof before this court that he adopted this as his last will. What more could the testator have done to have complied with the law? The words used by the testator on this occasion, “Fill ont my will to my wife” embraces all the requests required by the law. Especially in view of the fact that he adopted the signature as his signature and accepted and acknowledged the will as his will and ratified the acts of the subscribing witnesses who “made out this will.” Galvin Miller, et al., v. E. B. Miller, et al., 96 Miss. 526. We, therefore, submit that the will is a valid will under our laws and as such is subject to probation and that, 1. The mere fact that the testator’s name was signed at the top instead of being subscribed does not vitiate the will; 2. That the request by testator “To fill out my will” coupled with the adoption and ratification of the completed will, is a substantial and a sufficient compliance with the laws of our state. And therefore the court erred in refusing to allow this will to be used by appellant in sustaining her contention for this money and erred in revoking the letters testamentary issued to appellant on the probated will; and in refusing to give appellant a decree for the amount of the certificate. We submit, that, even under tbe authorities cited by counsel themselves, that the testimony, not only does not show that this paper was a completed will; but on the Contrary, the testimony shows that it was an incomplete will or a futile attempt to execute a will. The first edition of 29 Am. & Eng. Ency. Law, page 160, quoted by counsel after saying that: “In states where the place of signing is not- designated by statute, — the place of signing is of secondary consequence,” proceeds immediately to limit and restrict this statement by a proviso, which is like “the postscript to a lady’s letter,” to-wit: “provided wherever the testator may have chosen to-place his name, he meant it to stand for his final signature, and thereby authenticates the entire instrument as propounded. ’ ’ Later on in this same authority, note page 168, when it proceeds to discuss more particularly the question of what is a valid signature, and under the subhead, ‘ ‘ requisites of a valid signature,” it says: “The first essential of a valid signature is that the name or mark be put upon the paper, or subsequently adopted, with the intent of authenticating the instrument, so that no further signature on the maker’s part is contemplated,” and under the note to this it says: “The name of a testator at the commencement of a holograph will is an equivocal act, and unless it appears-affirmatively from something on the face of the paper that it was intended as his signature, it is not a sufficient signing under the statute.” Citing Ramsey v. Ramsey, 13 G-ratt (Va.), 664; 70 Am. Dec. 438; and Matter of Booth’s Will, 127 ÍT. T. 109. “In Everhard v. Everhard, 34 Fed. 85, the testimony showed that M. Everhard requested one of the witnesses-to write his will, which he did, as dictated by said Ever-hard ; that when it was written said Everhard attempted to sign it, but from physical debility was unable to do-so, though, in the attempt made a small mark or scratch on the paper, and failed to do more; that he said he made and published the paper as his last will and testament. It was held insufficient. The court said: “The paper writing shows a small mark or scratch on the left hand corner, but no name attached to it. There are also two small marks or dots on another part of the paper, very dim, and look as though made with the point of a pencil, and not at the usual place for signing such a paper, by the party executing it. The name of M. Ever-hard only appears in the commencement of the paper, which it is evident was not intended as a signature of the testator. The draughtsman was not requested to ‘sign the testator’s name’ and the testator’s effort to sign the paper himself shows he did not recognize the signature made in the commencement of the writing by the draughtsman as his signature. The place where made, and the character of the small marks, and dots, furnish no evidence that they were made as a substitute for the signature of the testator. It is true that a testator may sign his will by making his mark, but he must intend the mark as a substitute for his name; and when there is no name written, or anything indicating who made the mark, and especially when the mark is made at an unusual place for the signature, it ought to require very satisfactory evidence that the mark was intended by the testator as his signature, or as a substitute for it.” Cited on p. 169, 29 Cyc. (1 Ed.), under note 1. It will be noted in this last case, although Everhard, not only requested one of the witnesses to “write his will” (just as John Armstrong requested F. N. B. Ward here) but he went further and dictated to the witness how to write it, that the court specifically says that the draughtsman or said witness was not requested to “sign the testator’s name;” and, although Everhard there said that he made and published the paper as his last will and testament (which was not done at all by John Armstrong, or anything else -said by him), the court held that insufficient and no will. Again, on page 174 of this same authority, it says: “The signature of another, to be valid, must be final; and in the second edition of this same 30 Am. & Eng. Ency., 586, the same language is used. Now, in this case, of course, John Armstrong did not sign at all, and made no mark whatever upon the paper, and P. N. B. Ward is the only one that counsel contend signed for him by his “express direction;” and, P. B. N. Ward, not only swears that he did not sign by Armstrong’s express direction, or even authority or request, but that the only thing that he did was to fill up the blank spaces left in this printed form; and that he did not intend, when he wrote the name of John Armstrong at the beginning of the paper, for it to be his final and completed signature; but that, on the contrary, that he knew the place where the name ought to have been signed was at the end on the dotted lines below the body of this writing, but that he did not sign that, but failed to do so by mistake and because John Armstrong did not either direct, authorize or request him to do so. The fact that P. N. B. Ward happened to be an officer in a mere local lodge of this order at the time, we submit, cuts no figure whatever in the determination of this question. The point is that, according to our statutes (which had been adopted by this lodge as the only method and manner by which any other person the one to whom the policy was originally payable could in any way get or take the money under said policy) that the proof must show (and it fails to show same) that either the maker of the instrument must himself sign same, as and for his completed and final signature, or that some other person must so sign the same by his express direction. And we go further and say that, even though the scrivener on this occasion had actually written the name of John Armstrong at the physical end of the body of the instrument, we submit, that under the testimony in this case, this still would not be a valid will, because it would lack the essential element of the express direction on the part of John Armstrong, and also because it would not have been “signed as and for his completed signature, and acknowledged and adopted by him as such Ut the time, ’ ’ which is the rule laid down in the case of Sheehan v. Kearney, 82 Miss. 688, from the language of which, as the court will see that in such a case “the signature when signed by another for the testator must not only be at the express direction of the testator as and for his completed signature;” but further and also the same “must be acknowledged and adopted by him as such, at the time. ’ ’ It will be noted that in that case, the court used the conjunction “and” and not the disjunctive “or.” Counsel urge that this signing is all right, because John Armstrong assented to the manner in which the will was made out and assented to the signing of his name by the witnesses claiming that the filling in the blank after the word “I” at the very beginning, constituted a signing of the will. In answer to this, we.call the court’s attention to the language of 30 Am. & Eng. Ency. Law (2 Ed.), 585, and the note 13 thereto, under the head of “signature by party other than testator,” to-wit: “In numerous jurisdictions, the statutes provide that a will may be signed by some person other than the testator in his presence and by his express direction;” and the note to this is as follows: “Mere assent or acquiescence to another’s signing, or knowledge of the testator that his name is being signed, does not meet the requirements of the statute.” As stated also in note 1 on page 1103 of 40 Cyc., under the subhead: “What is not a sufficient compliance”— ‘ ‘ The fact that the testator knows that his name is signed by another does not satisfy the statutory requirements as to signing. The signing must be in pursuance of the previously expressed direction of the testator.” Citing many authorities. Again in the same note on the same page, we call the attention of the court to the following: “A refusal by others present to sign for testator at his request leaves the execution ineffective, as his request is not ~a substitute for the subscription,” so here, even if the mere request of John Armstrong that F. N. B. Ward “make out his will to his wife,” could be construed, as an express direction to F. N. B. Ward to “sign John Armstrong’s name to his will (which we submit cannot be done) still such a request would not be a substitute for the subscription or signing of his name; and the failure or refusal of F. N. B. Ward to actually sign his name, would still leave the execution of this will ineffective and incomplete. The same-Cyc. 40, page 1105, in speaking of the location of signatures says: “It is essential, however, that the signature, whatever its local position, must have been made with the design of authenticating the instrument, and (further and also) that he should have contemplated no further signature.” Both from the face of the instrument and from the testimony of F. N. B. Ward, such a design is wholly absent; and a further signing and action is shown to have been contemplated and necessary. Another thing, which is wholly lacking in this case to make this a will; and that is, that it is not shown affirmatively that John Armstrong was made acquainted with the contents of this so-called will, either by having it read over to him or by having it explained to him before he signed it, or authorized or directed any one else to sign the same for him. It is, however, affirmatively shown that he could not read, and that it was not read or explained to him. We quote the following from 30 Am. & Eng. Ency. Law (2 Ed.), 586: “Knowledge of contents before signature. — It is, of course, essential that the- testator should have knowledge of the contents of his will before he signs the same, and, as a general rule, this knowledge is presumed. But the presumption does not arise where the testator is blind, or illiterate, or for any canse is unable to read, and in snch case it must be shown affirmatively that he was made acquainted with the contents of the will by reading it over or explaining it to him before he signed it.” See to the same effect: 29 Am. & Eng. Ency. Law (1 Ed.), 176; 40 .Cyc. 1100. Counsel all the way through their brief allude to the fact that John Armstrong undoubtedly intended and attempted to make a will to his wife, and seem to argue that this attempt or intention, although not carried out and completed by acts, and, notwithstanding he did not do those acts which are necessary to carry out the intention or attempt to make it a will, that a court of equity will complete and make the will for him by adding the essential elements that he had left out, or reform the will for him. It would seem hardly necessary to cite authorities that no court will do this; but we will only refer the court to two authorities which are annotated under this section 5078 of the Code of 1906, to-wit: Schlottman v. Hoffman, 73 Miss. 188, which holds that no court can decree the reformation and correction of a will; and Johnson v. De-Lome, 77 Miss. 15, which holds that courts can no more ■supply defects in the execution of a will or codicil-than that they can add to or substract from its words. Another thing, to use the language of the court in the ■case of Sears v. Sears, 11 Am. & Eng. Ann. Cases, 1012, when considering a will: ‘ ‘ The question is not what did the testatrix intend to do, but what did she do.” "VVe also refer to this case to show that the name of John Armstrong written at the beginning and in the body of the instrument was merely descriptio personae. We also quote the following from said case on page 1013: “The statute enacts that the order of probate shall be prima facie evidence, and so it is; but it also enacts that the defendant shall offer the will, which he did; and it appearing from tlie will itself that it was not signed at the end thereof, the prima facie ease made by the order of probate is overcome. > But, if it be said that this is technical, and that what the legislature manifestly intended was that the will and order of probate should make a prima facie case, then we have only to say that the legislature could not have intended that it ever should be left to a jury to determine that a will not signed as required by the statute was valid because they found that the testator intended to comply with the statute.” We also quote the following from the case of Baker v. Brown,. 83 Miss. 797: “We were at first much impressed with the clear proof made, that the deceased intended this paper to be her testament. But there is no more doubt that she intended the invalid nuncupative codicil to be her testament. Yet as the latter was attested by women who are incompetent testamentary witnesses, no one claims its validity. And so if the holographic will is not signed as required by law, her intentions cannot save it. The question is not whether she intended this paper to be her will, but whether it is a will clothed with the forms of law. An holographic like every other testament, is a solemn act. It matters not how clearly it conveys the last wishes of the decedent, if it is not clothed with the forms prescribed, it is null. We cite also as illustrative of this strictness Estate of A. G. Rand, 63 Cal. 468; War-wicke v. Warwicke, 86 Va. 602.” We call the court’s attention to the fact that this case of Warwicke v. War-wicke, 86 Va., cited above by our court approvingly, hold that it must appear affirmatively on the face of the instrument that the name was intended as a signature. One other thing to show that this was not a valid will. Both R. E. Ward on page 41 and F. N. B. Ward on page 60 of the record state that F. N. B. Ward requested R. E. Ward to sign his name to this instrument and that John Armstrong did not request him to do so at all, or make any request of him or say anything about it and that John Armstrong said nothing whatever after the form had been filled ont. In the ease of Miller v. Miller, 96 Miss. 526 and 532, cited by counsel, the court will see that in that case the court said: “The testimony in this case shows clearly that the testator exhibited his will to Cox and Phillips, two of the subscribing witnesses, stating to them that this was his will, that the signature to it was his signature, and that he had signed it. The testimony also •clearly shows that M. E. Davis, another subscribing witness, wrote the signature of Calvin Miller for him, and .at his direction, and that this was the signature adopted .and acknowledged by Calvin Miller when he stated the .above facts to Cox and Phillips. This was a good attestation of his signature.” The testimony in this case not only shows no such facts, but, on the contrary, shows that F. N. B. Ward did not sign Jno. Armstrong’s name at his direction, and that, after the blanks were filled out, and his name written in one of the blanks, John Armstrong did not exhibit this paper as his will to the two subscribing’ witnesses and state to them that it was his will, or that his name written in same by F. N. B. Ward was his signature, and that he had signed it. In fact, hé said and did nothing whatever. , In conclusion on this point, we submit, that, if this in■strument is a completed, executed will and valid under ■our statutes, and that these mere words of John Armstrong to F. N. B. Ward “to make out my will to my wife,” is sufficient to constitute a valid will, then all that would ever be necessary for any one to do hereafter is to simply say to some lawyer or other person “make out my will to my wife” (or to whomsoever such person wanted his property to go at his death). Simply this, and nothing more, would the testator have to do; and then all that the lawyer or other person would have to <lo would be simply to fill in the blank spaces, if he had a printed form, or if lie liad no printed form, to simply write, “I,--” (giving the name of the party), “do give and bequeath to my wife all of my property,”' without signing the name of the testator or having the testator to sign same, and this lawyer or other person simply to sign his name as a subscribing witness and request another party to sign his name, and hand this incomplete paper to the testator; and, although he told testator that something else was necessary to be done; and although, testator did not do this, or anything else, or say a single, solitary word, “this would meet all of the requirements prescribed by the statutes and the law; and would be a perfectly valid, legal will. And this, although it was proved that the testator could not read, and that the instrument was not read to him, and that it was not proved that he was acquainted with, and understood, the contents of the paper. To establish such a doctrine, would not only dq away with all of the formalities and essential requisites required by law to make a will; but would open wide the doors for the commission of any and all kinds of frauds.