Barnes v. Chase , 208 Mass. 490 ( 1911 )

Loring, J.

The difference between the case made out in this suit and that made out in Meads v. Earle, 205 Mass. 553, is to be found in the statement made by Elizabeth on her return to the Colomy kitchen five minutes after the attesting witnesses had subscribed their names to the instrument now propounded as her last will, namely: “ I forgot to sign my name to my will.” That remark showed that she did not write her name in the exordium clause intending it to stand as her signature to the will when complete.

It is apparent that when the attesting witnesses subscribed their names the instrument had not been signed and that if it be assumed that in subsequently filling in her name in the testimonium clause. Elizabeth did sign the instrument the attesting witnesses did not afterwards subscribe their names. It follows that the paper never was properly executed as the will of Elizabeth Bradley. See Chase v. Kittredge, 11 Allen, 49; Marshall v. Mason, 176 Mass. 216.

By the terms of the report a “ decree is to be entered reversing the decree of the Probate Court and disallowing the instrument offered for probate as the last will and testament of Elizabeth G. Bradley, and fixing. the amount to be allowed to the petitioner for his costs and expenses and remanding the cause to the Probate Court for further proceedings.”

So ordered.