Coplin v. Anderson , 1955 Okla. LEXIS 411 ( 1955 )

BLACKBIRD, Justice.

This appeal involves an instrument represented to be the will of one Grady Coplin, executed while he was a member of the United States Armed Forces, on July 1, 1950, and was stationed in Japan. It is on a mimeographed form prepared by the Army and distributed to Coplin and three other Army cooks who signed it as attesting witnesses. At that time, these men were alerted for service in Korea, during which service Coplin was, a short time later, killed in action.

The county court admitted the instrument to probate as Coplin’s last will and testament, on the petition of his mother, hereinafter referred to as proponent, and over the objections of Coplin’s father, proponent’s divorced husband, hereinafter referred to as contestant. Upon contestant’s appeal to the district court, that court also sustained the document as Coplin’s will and as such entitled to admission to probate.

In contestant’s present appeal from the latter judgment the only question to be determined is whether or not the document was subscribed by the deceased soldier and purported testator “at the end thereof” as required by Tit. 84 O.S.1951 § 55; there Tieing no question concerning its attestation or any other matter affecting its validity, if it was so subscribed. The complete •document, with the words and figures left blank in the mimeographed form being written in by Coplin himself, is as follows:

“I, Grady Coplin, a permanent legal resident of Broken Bow, Qkla., now in active military service in the Army of the United States (Army Serial No. RA6574860), being of sound and disposing mind and memory, do , hereby declare this to be my last will and testament, hereby revoking all former wills and testamentary dispositions by me made.

“1. I direct that my just debts and the expenses of my last illness and funeral expenses be paid in full.

“2. I give, devise and bequeath all of my property, real and personal of every kind whatsoever, and wherever the same may be situated, now owned or that may hereafter be acquired, to my beloved wife, Mother Mrs. Susie Anderson Broken Bow, Qkla.

“3. In the event my wife, Mother shall predecease me, I give, devise and bequeath all of my property, real and personal of ■every kind whatsoever, and wherever situated, now owned or that may hereafter ■be acquired to my Sister: Mrs. Gladys Sharrer, Broken Bow, Qkla.

“4. I hereby nominate and appoint my, ■wife Mother as executrix of this my last will and testament and direct that she be not required to furnish any bonds whatsoever in the performance of her duty as executrix; and if a' bond is nevertheless required, I direct that she be exempt from giving any surety or sureties thereon.

“In witness whereof, I have hereunto ■subscribed my name this 1st day of July 1950, in the City of Sasebo Kyushu, Japan.

“The foregoing instrument was signed, published and declared by the said Testator Grady Coplin, to be his last will and testament, in the presence of us and each of us, and who at his request and in his presence and in the presence of each other have hereunto subscribed our names as attesting witnesses thereto this 1st day of July 1950, in the City of Sasebo, Kyushu, Japan.

Hector P, Rosa of N..Y. C. — N. Y.

Stanley W. Matras of Pennsylvania

Albert J. Krivda of Pennsylvania.”

Proponent contends that Coplin’s writing of his name by his own hand in the above portrayed attestation clause, in exactly the same way he ordinarily signed it, and in the presence of attesting witnesses, constituted a substantial and sufficient compliance with the statute, supra; while contestant contends that this signature was not sufficient, because it was not “at the end” of the will within the meaning of that term as used in the statute.

There is a recognized conflict of opinion on this question. See 57 Am.Jur. “Wills”, Sec. 275, and the authorities cited in the notes thereto. Pertinent to the matter, most courts, like our own, recognize that the attestation clause is not a part of the will proper. See Ward v. Board of Com’rs of Logan County, 12 Okl. 267, 70 P. 378; Graham v. Tucker, Ohio App., 47 N.E.2d 801. Thus in the case of In re Stinson’s Estate, 228 Pa. 475, 77 A. 807, 808, 30 L.R.A.,N.S., 1173, it was said:

“A will is the legal declaration of a man’s intention which he wills to be performed after his death. Such declaration must, under our wills act, be in writing and signed at the end thereof by the testator, unless prevented by an absolute inability. His written declaration is his animus testandi. When it is fully expressed, his will is finished, and the end of it reached. It is there that his signature must appear as evidence that it is his will. What he regards as the end of his will, and what must manifestly be regarded as the end of it, from an inspection and reading of the writing, is the end of it under the statute, which contains nothing-about the spatial or physical end of it.”

If, under the above view, it is proper to construe “the end” of a will as the end of the testamentary dispositions therein contained, then it would seem that the signature of the testator immediately below such end would be sufficient to comply with such wording in a statute like Section SS, supra, and that if the attestation clause is not essential to the validity of the will, then such signing could be considered a subscription of the will, without reference to, or in disregard of, the fact that it appears in such clause, rather than on a separate line by itself; especially where it appears, as here, that the testator thought he was subscribing to the will by placing his signature at that place, and intended it as a subscription of the will. At least that would appear to have been the view of the Pennsylvania Court in the earlier case of In re Swire’s Estate, 225 Pa. 188, 73 A. 1110, which held:

“The statutory requirement that a will be signed ‘at the end thereof’ means the logical end of the language used, which shows that the testamentary purpose has been fully .expressed, and the position of the signature with regard to the bottom or end of the page is only evidence whether testator has completed the expression of his intention.

“The continuity of sense, and not the mere position on the page, must determine the statutory ‘end thereof’ as the place for the signature, where it is manifest that the full substance of testatrix’s intent is expressed, and the signature is at what she intended and regarded as the end of her will.”

See also the annotator’s comments on said case in the Annotations to Mader v. Apple, 80 Ohio St. 691, 89 N.E. 37, 23 L.R.A.,N.S., 515.

In the case of In re Churchill’s Estate, 260 Pa. 94, 103 A. 533, where portions of the will involved closely resemble the present one, except that there the testator tore off the lower end of the first sheet and wrote an addition to it in his own hand, and there was no evidence as to when or where he did these things, the Pennsylvania Court, we think inconsistently, refused to follow the principles enunciated in the previous opinions above quoted and followed the holding of the Ohio Court in Sears v. Sears, 77 Ohio St. 104, 82 N.E. 1067, 1071, 17 L.R.A.,N.S., 353, 11 Ann.Cas. 1008, to the effect that the signing of the testator’s name in the attestation clause cannot be considered a subscription upon reasoning that if a scrivener had prepared the will and had written the testator’s name in the attestation clause, it would have been “merely descriptio personae.” We think to apply such a dogmatic and technical rule to all cases, regardless of the facts in the particular case at hand, is unwarranted, unjustified, and erroneous. In accord with the view entertained by most courts that the end of a will is the end of the testamentary dispositions there set forth, our Legislature in enacting Section 55, supra, did not intend nor purport to specify the exact line or place at such end where the signature had to appear to be competent and sufficient as a subscription; and when the testator’s signature appears at such end, then the statutory requirement as to its location on the document is met. We refuse to extend the legislative mandate further than its plain wording implies and to add thereto a prohibition against such signature appearing in the attestation clause. While we recognize that parole or extrinsic evidence should not be allowed to change or add to a will, or to show that a would-be testator intended to execute his will in conformity with the statute, when in fact he did not, In re Abrams’ Will, 182 Okl. 215, 77 P.2d 101; In re Seaman’s Estate, 146 Cal. 455, 80 P. 700; Alexander’s Commentaries on Wills, Sec. 407, we do not think that such salutary rules reach or apply to the present case. Here the testator not only subscribed his name at what he apparently thought was “the end” of the will, but in fact subscribed it at the end of his testamentary dispositions, which, as we have seen, is the equivalent of the “end of the will” within the logical and reasonable rule above referred to, and within the meaning we think was intended by our Legislature. Thus contestant’s argument, taken from some of the cases, Sears v. Sears, supra, that a will not executed as required by statute is invalid notwithstanding the intention of the testator, does not apply. As said in the much later Pennsylvania case of In re Griffith’s Estate, 358 Pa. 474, 57 A.2d 893, 898, the testator’s signature “was at the logical and sequential end of the instrument although not at the physical or spatial end.” See also references cited in In re Schiele’s Estate, Fla., 51 So.2d 287, 290, which involved application of statutes similar to ours to a will, whose form and subscription differed in no material respect from the one here involved. We think the proper view coincides with that expressed in In re Golden’s Will, 165 Misc. 205, 300 N.Y.S. 737, where the court, after recognizing that a will is not the paper on which it is written, 'but the words written thereon, and the end of the will is the end of those words rather than the end of the paper, cited in In re Field’s Will, 204 N.Y. 448, 455, 97 N.E. 881, 883, 39 L.R.A.,N.S., 1060, Ann.Cas.1913C, 842, for the statement that: “The evil of fraudulent changes in wills is rare, while the evil of defeating wills altogether in the manner suggested is common”; and the views expressed in the case of In re Chase’s Estate, 51 Cal.App.2d 353, 124 P.2d 895, 900, where the court, after announcing similar views, said:

“To reach a different conclusion would in our opinion, be unnecessarily raising form above substance to destroy a document that was undoubtedly the will of the testatrix.” (Emphasis ours.)

The present case is distinguishable from In re Bond’s Estate, 159 Kan. 249, 153 P.2d 912, where the decedent’s signature, relied upon as a subscription, was a part of the body of the will.

In accord with the foregoing views, the judgment of the trial court is affirmed.

JOHNSON, C. J., and WELCH, CORN, DAVISON, ARNOLD and JACKSON, JJ., concur. WILLIAMS, V. C. J., and HALLEY, J., dissent.