Northcutt v. Northcutt

1. Ií a testator’s name is signed to a will by another at his request, and he then makes his mark, this is not a sufficient signing by the testator himself, but the will must be attested as required by the fifth section of the act concerning “wills,” (R. C. 1845.)

Appeal from Boone Circuit Court. This was a proceeding to vacate the will of William Nortb-ctttt, previously established in the Roone county court. The will was executed in 1846, before the repeal of the fifth section of the act concerning “wills,” (R. C. 1845.) Upon a jury trial of the question whether the instrument was the will of the deceased, the proof was, that one of the subscribing witnesses signed the testator’s name at his request, and that thereupon, the testator made his mark in the usual manner, by putting a cross between his Christian and símame ; but there was no statement upon the will that the witness signed the testator’s name at his request, pursuant to the fifth section of the statute of wills of 1845. The court ruled that the instrument, on account of this omission-, was not well executed, and under this direction, the jury found against the will. 1. Under our statute of wills before the revision of 1845, a mark was a sufficient signing. In adopting the British statute, we adopted the construction put upon it in British courts. (8 Levens, 1. 8 Yes. 185. 8 Yes. 504. 8 Adol. & Ellis, 94. 5 J. R. 144. 10 Paige’s Oh. Rep. 88. 16 Barb. S. C. Rep. 145. 13‘ Ire-dell, 259. 2 Greenl. Ev. §674.) 2. There have always been two modes of executing a will provided by the statutes of wills— a signing by the testator himself, and a signing by some other person by his direction and in his presence. The new provision, contained in the fifth section of the act of 1845, provides additional formalities where the second mode of signing is adopted, and, under the decision of this court, (14 Mo. Rep. 611,) it is essential to a valid execution of the will under this second mode, that those additional formalities should be observed ; but neither this decision nor the statute under which it was made touches the present case, where there is a good execution of the will by the testator’s own signing with a mark. A mark is not a sufficient signing under the fourth section of our statute. The legislature undoubtedly used the word signed in the sense of writing the name. They intended that the handwriting should afford some evidence of the identity of the signature. To provide for cases where the testator -was not able to write? they allowed his name to be signed by another ; but require the person who writes the name to attest the fact in the manner pointed out by the fifth section. That the word “signed” is used in this sense in the fourth section, is evident from the fact that it is thus used in the fifth section — “ every person who shall sign the testator’s name’’ &c. Different sections in a statute must be taken together in construing it. Although the fourth section of our act is a transcript of the British statute, it does not follow that it is to have the British construction when incorporated into an act, other provisions of which show' that such was not the design of the legislature. But the late decisions show that a mark is not a sufficient signing, even within the British statute. (1 Phill. on Ev. (Sd Am. ed. p. 486, and authorities cited in a note.) 2 Yesey, sr., 459.) If, however, a mark is a sufficient signing within the fourth section, the testator must intend to authenticate his will by this means alone. In this case, the evidence shows that he requested his name to be written. If this was intended by the testator as a part of the act to authenticate the instrument, it was necessary that the directions of the fifth section should be followed. The case of McGee v. Porter, (14 Mo. Rep.) is relied on as in p.oint.