Plemons v. Tarpey

SIMPSON, Justice.

This is a will contest where the proponent was successful in the court below and the contestant has appealed. The facts more fully appear in the dissenting opinion of the Chief Justice, to whom the case was originally assigned.

Appellant argues for error in the trial for the refusal of the court to give the affirmative charge with hypothesis on two theories: (1) The testatrix did not acknowledge her signature before the attesting witnesses and (2) because even if her signature, it was placed at the top of the instrument in the left-hand corner and our statute of wills does not permit the signing of the instrument in such manner.

The Chief Justice holds to the view advanced by appellant, but the other Justices are in disagreement and the case has been assigned to the writer for preparation of the opinion.

As appears in the dissenting opinion, the will begins: “Mrs. Nellie O’Connor 813 4 Ave E this is my will” etc.

Then follow various.dispositions and at the conclusion of the instrument appear the signatures of the two attesting witnesses. As we will show, the name “Mrs. Nellie O’Connor” was that of testatrix and there was sufficient evidence for the jury to conclude that it was her signature and that she so acknowledged it before the attesting witnesses when she asked them in substance to witness her “will.”

The argument against holding that the name of Mrs. O’Connor at the top of the will was not a valid signature to it seems to run thus: While the will would have been validly signed had she written “I, Nellie O’Connor, 813 — 4th Avenue East, do will etc.” Armstrong’s Ex’r v. Armstrong’s Heirs, 29 Ala. 538, yet by writing

“Mrs. Nellie O’Connor 813 4 Ave E this is my will” etc. it was not a valid signing.

The postulate not only impresses us as erroneous but also contrary to the stronger current of opinion in jurisdictions where the statutes are similar to our § 24. Title 61, Code, which, as to signing of a testamentary document, merely provides that to be effectual the will must be “signed by the testator or some person in his presence, and by his direction” without specifying, as some statutes in other jurisdictions do, that the signature must be at the “end” or “foot” of the instrument.

The prevailing rule is thus stated in 57 Am.Jur. 211, § 263:

“ * * * The view which prevails generally, although not with complete unanimity, is that where the statute does not fix the location of the signature of a testator to a will but merely provides that the will shall be in writing and signed, the signature of the testator may be placed at the beginning of the will, in the attestation clause, in the margin of the will, or anywhere on the face of the instrument, provided it is attached with the intention of authenticating the instrument * * * ”

Of similar import is the following statement from 68 Corpus Juris 661:

“ * * * Where the statute relating to signing requires no more than the statute of frauds — merely that the will shall be in writing and be signed, it is immaterial where the testator’s signature was placed, if it was placed there with the intention of authenticating the instrument * * * ”

These statements of the general rule are well supported by the cases in other jurisdictions, even though research has failed to disclose a case exactly similar to the in-' stant one.

Alabama follows the general rule. The essential for a valid signing, wherever the local position on the instrument, is that the signature must have been placed there with the intent of authenticating the document as the testator’s completed testamentary act. Armstrong’s Ex’r v. Armstrong’s Heirs, supra; Reynolds v. Massey, 219 Ala. 265, 122 So. 29; 29 A.L.R. 892.

The Armstrong case takes notice of the fact that our statute with reference to the signing of a testamentary document is similar to § 5, 29 Charles II, Ch. 3, and that we, therefore, in interpreting it follow the rule of the early English cases, such as Lemayne v. Stanley, 3 Lev. 1, and Morison v. Turnour, 18 Vesey 176, which cases interpreted the statute as mandating no particular location on the instrument for the signature of the testator, just so it was made with the intent of authenticating it as the testator’s testamentary act. Indeed, the Lemayne case stated that the will being written by the testator himself, “it is a sufficient signing within the statute, which does not appoint where the will shall be signed, at the top, bottom or margin, and therefore a signing in any part is sufficient.” Tumour’s case reaffirmed the principle, even though in these two cases the testator’s signature appeared in exordium.

But having reached the conclusion that the signature of the testator is not required under the statute to be at any particular place on the instrument, it is unrealistic and not altogether logical to say that the statute should be interpreted as limiting the placing of the signature of the testator within the four corners of the words of the instrument themselves. There is no such rule as this and it is against the weight of authority in jurisdictions where the stature is similar to our own.

The expression in Reynolds v. Massey, 219 Ala. 270, 122 So. 34, in treating of the efficacious attestation of the will, “what is intended by the testator to operate as a signing by him * * * whether written in its face * * * or affixed at the foot thereof” in no way imports a holding that the testator’s signature is to be limited in its location to the actual body of the document or at the foot. Rather, that the signature may be affixed anywhere on the “face” or front of the instrument, since this court has ruled that the face of an instrument includes more than the actual body. Sacred Heart Church Building Committee v. Manson, 203 Ala. 256, 82 So. 498 (an endorsement “on the margin at the top” of a note referred to as “on the face of this note”) and Verner v. White, 214 Ala. 550, 108 So. 369 (writing “across the marginal end” referred to as “upon the face of the paper” as distinguished from “as if found in the body of the instrument.”)

This general rule that the signature may be placed anywhere on the instrument unless the statute stipulates the location to be otherwise comports with the analogous rule that it is not necessary for' the attesting witnesses to a will to sign at the foot, but that they may sign on any part of the will, if with the intention of attesting it. Hughes v. Merchants Nat. Bank, 256 Ala. 88, 53 So.2d 386 (where subscribing witnesses signed at top of instrument).

These two rules, it seems to us, coincide to a logical result and are consonant with the whole theory that the location of the signature of either the testator or the “subscribing witnesses” is not controlling, but the intent with which the signatures are affixed being the essential of the statute.

To recapitulate, § 24 provides:

“No will is effectual to pass real or personal property, except in the cases hereinafter provided for, unless the same is in writing signed by the testator or some person in his presence, and by his direction, and attested by at least two witnesses, who must subscribe their names thereto in the presence of the testator.”

There is no more logic in making a distinction between the location of the signatures of the attesting witnesses than that of the testator, although “subscribed” would seem to import more a signing at the bottom of the will than elsewhere. The correct rule in each case should be, it seems to us, as follows:

1. The statute not fixing the location of the signature of a testator to a will, but merely providing that it shall be in writing and signed, it may be placed at the top, in the margin, or anywhere on the face of the instrument provided it is affixed thereto with the intention of authenticating it as the testator’s completed testamentary act.

2. Our statute not requiring that attesting witnesses sign their names at the foot or end of the will, its condition is met by the witnesses affixing their respective signatures on any part of the instrument with the intent of attesting it, the essential being that by. their signatures they intended to affirm their due attestation of the document as subscribing witnesses.

We also entertain the view that there was sufficient evidence to go to the jury on the issue of the due execution by Mrs. O’Connor of the instrument as her last will and testament.

There was proof, or at least the jury could in reason infer, that the document was in Mrs. O’Connor’s own handwriting; that she called the two subscribing witnesses to witness her signature, telling them that this was her will and that she wished for them “to sign it” and that they did in fact affix their signatures in Mrs. O’Connor’s presence as attesting witnesses to it. Mrs. Moore testified that she recognized the paper as the one she signed on the day she was requested by testator to witness it; that she signed it in Mrs. O’Connor’s presence as it was lying on the desk and wrote beside her name “witness” at the bottom of the instrument. “I took the paper in my hand and read.it a little bit, and being familiar with Mrs. O’Connor’s handwriting and she asking me to sign it, I signed it; it was her will and I signed it.”

“Q. Did you see her name on it at that time? A. Yes and I know it was her handwriting. It was her writing.'

“Q. And she asked you.to sign it? A. Yes sir.

“Q. You then wrote the word ‘witness’ on it and signed your name. A. Yes, sir.”

She also testified that although Mrs. O’Connor did not tell her she had signed her name at the top “she didn’t need to, I saw it there.”

The other subscribing witness, Mr. Garrison, who signed his name under Mrs. Moore’s, testified that he affixed his signature to the instrument under that of Mrs. Moore at Mrs. O’Connor’s request and that “he witnessed her will for her.”

Under the rule of Armstrong’s Ex’r v. Armstrong’s Heirs and the later case of Massey v. Reynolds this was undoubtedly enough proof to go to the jury on the question of due execution of the will. As was stated in Massey v. Reynolds, 213 Ala. 178, 183, 104 So. 494, 499, “The burden of proof, in order to make out a prima facie case, rested on the proponent to offer some testimony showing the will was in writing; that it was signed by the testator; that two persons subscribed their respective names to it as witnesses in the presence of the testator under the word ‘witness.’ * * * No particular form of words of the testator is necessary in his acknowledging to the subscribing witnesses that the name on the instrument is his signature. It may appear to them and be proved by his words, or by his acts, or by the circumstances surrounding him and them at the time of the subscribing, or it may appear to them and be proved by a combination of all three — his words, his acts, and the circumstances surrounding them.” Requoted in Reynolds v. Massey, supra, 219 Ala. 269, 122 So. 29.

We hold, therefore, the proponent met the burden of proof, made out a prima facie case as to due execution of the instrument, and the court correctly submitted the issue to the jury.

Affirmed.

All the Justices concur except LIVINGSTON, C. J., who dissents, and MAY-FIELD, J., not sitting.