Plate's Estate , 148 Pa. 55 ( 1892 )

Opinion by

Me. Justice Mitchell,

We are obliged to differ with the learned court below not on the principles of law but on their application to the facts of this case.

The codicil in question was not properly executed by a mark, for the conclusive reason that the stroke of testator’s pen was not put there with that intention. The act of 1848 makes all wills valid “ to which the testator hath made his mark or cross .... provided the other requisites under existing laws are complied with.” It is not necessary for us to consider that part of the argument which is founded on the supposed failure of other requisites such as the presence of the testator’s name, though in another’s writing, for the identification of the mark, or the absence of two witnesses to the fact of execution. The statute in authorizing the execution of a will by a mark can only mean a mark made with the intent to execute the will thereby. Without such intent, paraphrasing the language of Chief Justice Gibson in Greenough v. Greenough, 11 Pa. 497, “ a cross, or a scratch, or a scrawl, or a dot, or a dash .... imports no more than would a blot or a stain, or any other accidental discoloration of the paper at the foot of the instrument.” The evidence shows beyond all doubt that the testator did not intend to execute the codicil by a mark, or make the stroke of the pen in question for that purpose. On the contrary, he started to write his name and made a stroke, which bears no resemblance to the form of mark ordinarily used for such purpose, and which two witnesses profess to recognize as the first part of the initial of his first name Herman, and then putting the matter beyond all controversy, he stopped and said “ I can’t sign it now.” The intention to execute by a mark is affirmatively disproved.

Nor is the codicil properly executed by a signature, for the signature is incomplete and the evidence shows that the testator so regarded it. The learned court below were quite right in saying “ exactly what constitutes a signing has never been reduced to a judicial formula .... The principle upon which these cases proceeded was, that whatever the testator or grantor was shown to have intended as his signature, was a valid signing, no matter how imperfect or unfinished or fantastical or illegible, or even false, the separate characters or symbols he used, might be, when critically judged.” But even by this test nothing is a signature unless it is meant by the signer to be such, and this requirement is destructive of the present case, for the facts do not show that the testator regarded this stroke of his pen as his signature. On the contrary, they show that not only to a critical judgment, but to the testator himself, there was no signature. His expression “ I cannot sign it now,” after the stroke had been made, proves conclusively that he did not consider that he had signed and intentionally postponed doing so until a future occasion.

In Knox’s Estate, 131 Pa. 220, the subject of signatures was considered with much care, and cases were cited in which signatures lacking various elements of the full formal and complete name had been held valid, but in none of the cases there cited or since brought to our attention, was the signature incomplete to the testator’s own understanding and intent. The result of the cases is thus expressed, “ the English and some American cases hold that a signature by initials only, or otherwise informal and short of the full name, may be a valid execution of a will or a contract, if the intent to execute is apparent.” Further consideration confirms us in the correctness of this proposition, but barring any sudden incapacity to complete by reason of the extremity of last sickness, of which there can be no claim here, it is an indispensable element that the signature actually made shall be a full and complete signature according to the intention and understanding of the testator.

The undisputed facts in the present case show conclusively that the completed intent to execute this codicil in any way whatever is entirely wanting.

Decree reversed at the cost of the appellees.