Armstrong's Ex'r v. Armstrong's Heirs , 29 Ala. 538 ( 1857 )

RICE, C. J.

By our statute law, every person over the age of eighteen years, of sound mind, may by his last will dispose of all of his personal • property ; and every person of the age of twenty-one years, of sound mind, may by his last will devise his lands, or any descendible interest he may have therein. — Code, §§ 1589, 1595.

Except in certain cases, of which the present is not one, the formalities requisite to a will, under section 1611 of the Code, are, 1st, that it be in writing ; 2d, that it be signed by the testator, “ or by some person in his presence, and by his direction ; Bd, that it be attested by at least two witnesses, who must subscribe their names thereto in the presence of the testator.

In the case at bar, it appears clearly from the evidence, that the first and third of these requisites have been complied with; and the question is, whether the second of them has been complied with.

Section 1611 of the Code, so far as it relates to the second requisite, is a substantial transcript of that part of the 5th section of 29th Car. II, ch. 3, which related to the signing of the will ; and therefore, the construction which had been put upon that part of the British statute, and settled as its true construction, by the British decisions before the adoption of our statute, ought to be regarded as the construction which our legislature intended to be put upon that part of our statute now under consideration. We shall adopt and follow that construction.

According to those decisions, if the testator with his own pen writes his own name in the beginning of the will, thus, •“ I, James Armstrong,” with the design of giving it authority, and acknowledges it to be bis writing when he calls the subscribing witnesses to attest it; and if, at the time of acknowledgment, he does not intend to subscribe it, the signing is sufficient, under the statute, without any subscription of his name at the bottom. — Lemayne v. Stanley, 3 Lev. 1 ; Morison v. Turnour, 18 Vesey, 176; Ellis v. Smith, 1 ib. 11 ; Grayson v. Atkinson, 2 ib. 454 ; Stonehouse v. Evelyn, 3 P. Wms. Rep. 254 ; Miles’ Will, 4 Dana’s Rep. 1 ; Jarman on Wills, 70.

It is not essential that the testator should write his own name. The British statute, as* well as our own, allows a will to be signed for him by another ; and his name, when written by another, for him, in his presence, and by his direction, will have the same effect as if it had been written by himself. Although his name is not written by himself, nor subscribed to the will; yet, if it be written in the beginning of the will by another, in his presence, and under his direction ; and if it be acknowledged by him to the attesting witnesses, at the time he calls on them to attest and subscribe it, it will be as effectual as if with his own pen he had written it. — See the authorities cited supra ; and Martin v. Wotton, 1 Lee, 130 ; In the goods of Clark, 2 Curteis, 329 ; Addy v. Grix, 8 Vesey, 505 ; 10 Bacon’s Abr. (edition of 1846,) 490-503.

As the party who opposed the probate of the will in this ease, interposed a demurrer to the evidence, and there was a joinder therein, it was the duty of the court to have decided against him, if the jury from that evidence could legally have found against him. We do not say, that from the evidence the jury would have been bound to find against him ; but we think they might legally have done so. Athough it may not be a necessary inference from the evidence, that the name of the testator was written by Doctor Massie in his presence, and by his direction ; yet it is an inference which the jury might legally have drawn. — Spencer, adm’r of Donaldson, v. Rogers, adm’r of Waters, at this term; Shaw v. White, 28 Ala. 637.

The court below erred in sustaining the demurrer to the evidence; its judgment is therefore reversed, and the cause ¡remanded.