Cone v. Donovan

1. WILL: Attestation: Knowledge of Witnesses. There can be no valid attestation of a will unless the attesting witnesses know at the time that the instrument is being made and attested as a will. 2. -: -: Presumption of Knowledge: Genuine Signature. If the instrument purports on its face to be a will and the signatures of the witnesses are conceded to be genuine and those witnesses, though still living, have forgotten the facts as to such attestation, the law may well presume, in the absence of contrary evidence, that all things connected with its execution and attestation were rightly done, and that" the witnesses were informed that the instrument was a will; but such presumption cannot be indulged where the instrument does not púrport to be a will; it will not be indulged if the instrument is in the form of a letter, and the maker concealed from his stenographer the name of the alleged legatee and after the balance was written by her he wrote in the beneficiary’s name, and after it was signed by him and the two witnesses he placed it in a sealed envelope and wrote on it: “In the event of my death I want this letter to be delivered unopened” to a designated friend, and then placed it in a vault among his papers, where it remained until after his death, twelve years later. 3. -: -: -: Overcome by Evidence. Even if the law, in the absence of contrary evidence, will- presume that witnesses, whose signatures are conceded to be genuine, were informed by the maker that the instrument, which purports on its face to be a will, was his will, such presumption may be overcome by evidence; and where there is strong evidence to overcome it, the finding of the trial court against the paper will not be disturbed on appeal.

Appeal from Buchanan Circuit Court. — Hon. Charles H. Mayer, Judge. (1) Was the document attested by two competent witnesses who subscribed their names thereto in the presence of the testator? It is not necessary that a will should have any prescribed attestation clause. Ela v. Edwards, 16 Gray (Mass.), 91, 92. In the early English case of Hands v. James, 2 Comyns, 530, the court held that the- presumption arose, upon proof of the signatures of the testator and attesting witnesses, that the will had been duly executed, although the details of the execution were not recited in the attestation clause. To the same effect is Croft v. Paulet, 2 Strange, 1109, and the case of John Johnson, 2 Curt. 311. These cases have been cited and approved by the courts of this country and by all leading text-book writers without an exception, and the courts of the United States have extended the doctrine to cases where the witnesses have forgotten the details required by the statute, whether the facts are shown in the attesting clause or not. 1 Greenleaf on Evidence, 38a; 1 Jones on Evidence, sec. 44; 2 Wigmore on Evidence, see. 1512; 14 Ency. ■ Evidence, sec. 407F; 40 Cyc. 1273-1274; Beach Law on Wills, sec. 39. The later English courts and the courts of the United States have extended this doctrine to apply to a case where the witness has forgotten the facts. Clarke v. Dunnavant, 10 Leigh, 13; Tyler’s Estate, 121 Cal. 405; Craig v. Craig, 156 Mo. 362. (2) It cannot he argued that an attestation clause is necessary to the validity of a will, as the rule has always been without any exception, that a will is valid without any attestation clause whatever. 1 Jarman on Wills (4 Ed.), sec. 74; The proof of execution of the will in question is purely a matter of evidence. Tyler’s Estate, 121 Cal. 405; Burgoyne v. Showier, 1 Rob. Eccl. 10; In re. Leach, 12 Jur. 381. In the case of Kirk v. Carr, 54 Pa. 285, the court says: “Want of memory will no more destroy the attestation than insanity, absence or death.” Clarke v. Dunnavant, 10 Leigh, 13; Deupree v. Deupree, 45 Ga. 415; Ela v. Edwards, 16 Gray (82 Mass.) 91; Elliott v. Elliott, 92 Mass. 357; Fatheree v. Lawrence, 33 Miss'. 622; Lawrence v. Norton, 45 Barber 452; McKee v. White, 50 Pa. St. 360; Barnes v. Barnes, 66 Me. 286; More v. More, 211 111. 268; Woodruff v. Hundley, 127 Ala. 640; Tevis v. Richter, 10 Cal. 466; Pennell’s Lessee v. Wegant, 2 Piar. (Del.) 51; Mead v. Trustees of Presbyterian Church, 229 111. 526. In the case of Young v. Banner, 27 Graft. (Va.) 96, the court held, 1. c. 108: “Surely every reasonable presumption ought to be made in favor of the proper execution of the will,” and on page 106, the court says: “Such presumptions are absolutely essential to the protection of property and the security of titles. Were it otherwise the most important and solemn instrumejits would often fail to take effect by the death, or from the mere failure of attesting witnesses, real or assumed, to recall each and every formality presented for the execution of testamentary papers.” Chisholm v. Ben, 7 B. Mon. (Ky.) 408; Gould v. Theological Seminary, 189 111. 287; Butler v. Benson, 1 Barber, 526; Jackson v. Christman, 4 Wend. 277; Carpenter v. Demoon, 29 Ohio St. 379; Ex Parte Brock, 37 S. C. 348; Webb v. Dye, .18 W. Ya. 376. (1) Mr. Donovan was a man of intelligence, entrusted with the management of large business affairs, and it is only reasonable to presume that had he intended this letter to be a codicil to his will he-would have said so in no uncertain language. He would not have surrounded the execution of it with so much secrecy; he would have informed the witnesses of his intention and would not have directed that the letter be delivered unopened to G. F. Swift, in the event of his death. He would have called it a codicil and not a request, and he would not have called upon Swift to perform this request instead of the executors who undoubtedly he had named in the will to which he.referred. That he did not • intend this letter to operate as a codicil to his will is clearly shown by his intention not to publish it as such, but to have the letter delivered unopened to Swift, in whom he undoubtedly sought to impose a secret trust to carry out or not as he should think best. That he did not intend it to be a codicil is shown not only by the language of the letter himself, but by the fact that when he destroyed his will he did not also destroy the codicil, or at least if he had intended it to be a will he would, upon the death of Mr. Swift, nearly eight years before his own death, have directed it to som.e other friend' or made some change therein to indicate that he still desired it to operate as a will. (2) A will and a codicil thereto are one instrument, and the testator’s intention must be ascertained from the four comers thereof. Middleton v. Dudding, 183 S. W. ¿443. Griffith v. Witten, 252 Mo. 627; Wells v. Fuchs, 226 Mo. 106. (3) “It is not the mere physical act of signing that the witnesses attest; it' is that the instrument signed with the name of the testator is his will.” Walton v. Kendrieh, 122 Mo. 525. “The witnesses must know that it is the will of the testator and witness it as such.” Odenwalder v. Schorr, 8 Mo. App. 467; Withinton v. Withinton, 7 Mo. 589; Cravens v. Faulconer, 28 Mo. 19; Harris v. Hayes, 53 Mo. 90; Norton v. Paxton, 110 Mo. 456; Grim v. Titman, 113 Mo. 57; Ott v. Leonhardt, 102 Mo. App. 43. It is essential that the proper communication he made from the testator to the witnesses so that they may he able to depose to the act having been understandlingly done and that the paper is his will. Mittenberger v. Mittenberger, 78 Mo. 27; Bensberg v. Wash. University, 251 Mr. 657. It is essential that it be made to appear unequivocally that the testamentary character of the instrument was communicated to the witnesses by the testator by some word, sign, act or conduct. 40 Cyc. 118, 119; In Matter of Turell, 47 N. Y. App. Div. 560, 62 N. Y. Supp, 1053,166 N. Y. 330; Robbins v. Robbins, 50 N. J. Eq. 742. Even though the deceased intended the letter in question to be a codicil to his will, the destruction of the will is an implied revocation of the codicil. Woerner Law of Admin., p. 86; Matter of Weston, 115 N. Y. Supp. 1149; 40 Cyc. 1281. (4) The court sitting as a jury having found that the memory of the witnesses was good, that they never signed this letter as a will, and were never informed that it was intended for a will, appellants are concluded thereby. Walton v. Hendrick, 122 Mo. 504; Ortt v. Leonhardt, 102 Mo. App.' 38. The presumption of due attestation of a will from a certificate of attestation cannot overcome the positive testimony of the attesting witnesses showing that the statute was not complied with. In re Solomon’s Estate, 145 N. Y. Supp. 528; In re Shaffer, 2 How. Pr. (U. S.) 494.