Churchill's Estate

Opinion by

Mr. Chief Justice Brown,

The requirement of the Act of April 8,1833, P. L. 249, is that every will shall' be in writing and signed by the testator “at the end thereof.” This is a most wholesome provision and remedied mischiefs which existed at the time the act was passed, for the English Statute of Frauds was held to have been satisfied whenever the name of the testator, in his own handwriting, appeared in the introductory or any other part of the instrument offered for probate: Hays v. Harden, 6 Pa. 409. “Our statute of wills, passed April 8th, 1833, was intended to form a complete system, by which a posthumous disposition of property might be made. In our endeavors to ascertain its meaning, we must so construe it as to make it consistent with itself. Nor should we lose sight of the mischiefs which existed at the time when it was enacted; mischiefs which it was designed to remedy. Among those, none was more serious than the facility with which unfinished papers, mere inchoate expressions of intention, were admitted to probate as valid wills of decedents. Letters, memoranda, mere notes unsigned, ' which were entirely consistent with a half formed purpose, and which may have been thrown aside, and never intended to be operative, were rescued from their abandonment, proven as wills, and allowed to prevail as dispositions of property which there was much reason to believe the decedent never intended. It was to remedy this mischief that the Act of 1833 provided, that every will should be signed at the ‘end thereof.’ That thus, by his signature in that place, the testator should show that his testamentary purpose was consummated, and that the instrument was complete”: Heise v. Heise, 31 Pa. 246. “The purposes of the Act of 1833 were accuracy in the transmission of the testator’s wishes, the authentication of the instrument transmitting them, the identification of the testator, and certainty as to his completed testamentary purpose. The first was attained by requiring writing instead of mere memory of witnesses, the second and third by the signature of testator, and the last by placing the signature at the end of the instrument. The first two requirements were derived from the English statute; the third was new (since followed by the Act of 1 Yict. c. 26), and was the result of experience of the dangers of having mere memoranda or incomplete directions taken-for the expression of final intention: Baker’s App., 107 Pa. 381; Vernon v. Kirk, 30 Pa. 223”: Knox’s Est., 131 Pa. 220.

The paper admitted to probate in the present case is a printed form of a will, all the written portions of it being in the handwriting of P. Churchill, the decedent. When he filled up the blank spaces and wrote directions and bequests in it, he saw printed immediately below the testimonium clause the word “seal,” and this clearly indicated to him — admittedly a man of intelligence— where he was to sign his name as testator. It was the end of the printed form of the will which he used, and if he had signed his name there, the instrument would have been executed as the statute requires, even if there had been no attestation clause signed by witnesses ; but he did not sign his name at what was so clearly- the end of the paper , as a. wi-lh ■ -What, he-did- do was-to write his name in three blank spaces in the paper — first at the top and then in the testimonium and attestation clauses. In doing so he was merely acting as his own scrivener; but because he said to one of the two attesting witnesses, “This is my will, I have signed it,” and to the other, “I wish you to witness my name to a paper,” and subsequently handed it to a physician, saying, “This is my will, and I want you to keep it for me,” the learned court below was of opinion that the “testamentary purpose was complete and that the signature in the attestation clause meets every statutory requirement of being ‘at the end thereof.’ ”

The decedent may have thought he had made a will, but the statute shys he had not. The question is not one of his intention, but of what he actually did, or rather what he failed to do. He failed to sign the paper at the end thereof, and this essential requirement of the statute is not met by the insertion of /his name in his own handwriting in three blank spaces in the printed form of the paper which he may have intended to use in executing his will. “It may happen, even frequently, that genuine wills, namely, wills truly expressing the intentions of the testators, are made without observations of the required forms; and whenever that happens, the genuine intention is frustrated by the act of the legislature, of which the general object is to give effect to the intention. The courts must consider that the legislature, having regard to all probable circumstances, has thought it best, and has therefore determined, to run the risk of frustrating the intention sometimes, in preference to the risk of giving effect to or facilitating the formation of spurious wills, by the absence of forms. It is supposed, and that authoritatively, that the evil of defeating the intention in some cases, by requiring forms, is less than the evil probably to arise by giving validity to wills made without any form in all cases”: Smee v. Bryer, 6 Moore P. C. 404. In Wineland’s App., 118 Pa. 37, after the signature of the testator at- the end of the will there followed an unsigned clause appointing executors, and, in reversing the court below in directing the register to admit the paper to probate as the last will and testament of the deceased, we said: “Our Act of 1833 as well as the statute of Yict. are in part borrowed from the British statute of frauds, two sections of which have been so evaded by judicial construction as to be practically repealed. We do not propose that the Act of 1833 .shall meet with the same fate. The legislature have laid down a rule so plain that it cannot be evaded without a clear violation of its terms. No' room is left for judicial construction or interpretation. It says a will must be signed at the end thereof, and that’s the end of it. We are of opinion that this paper was not a will within the meaning of the Act of 1833, and that it was error to admit it to probate.”

Swire’s Est., 225 Pa. 188, cited by counsel for appellee, is not an authority sustaining the action of the court below. All that was there decided was that, as the signature of the testatrix appeared at the end of the codicil, it was in compliance with the statutory requirement, notwithstanding some marginal bequests on the same page, above the signature.

The precise question before us on this appeal does not seem to have been passed upon in any of our cases. Sears v. Sears, 77 Ohio 104, a well considered case, supports the contention of the appellant, and in its reasoning we concur. There, as here, the decedent used a printed blank form of will. The blanks in the testimonium and attestation clauses were filled in by her, and then read as follows, including the signatures of the two witnesses:

“In testimony whereof, I have set my hand to this my last will and testament,, at Lakewood, Ohio, this Sixth day of June, in the year of our Lord One Thousand Nine Hundred and Three.

a

“The foregoing instrument was signed by the áaíd Arminda S. Nicholson in our presence, and by her published and declared as and for her last will and testament; and at her request, and in her presence, and in the presence of each other, we hereunto subscribe our names as attesting witnesses, at Lakewood, Ohio, this Sixth day of June, A. D. 1903.

“J. W. Southern, resides at Lakewood, O.

“Julia K. Southern, resides at Lakewood, O.”

The statute of Ohio, like our own, requires every will to be in writing and signed at the end thereof. It was contended that because Arminda S. Nicholson had written her name in the attestation clause, it was equivalent to her signature at the end of the will, and the circuit court so held. In reversing this and holding that the will had not been executed as required by the statute, the Supreme Court of the State held as follows: “In the case before us, the will is not signed by the testatrix at the end thereof. The testimonium clause is as follows:

“ ‘In testimony whereof, I have' set my hand to this my last will and testament, at Lakewood, Ohio, this Sixth day of June, in the year of our Lord One Thousand Nine Hundred and Three.

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“The obvious purpose for which this blank line was left was for the signature of the testatrix, and it was intended as the end of the will. The absence of her signature there not only discloses that the will is not signed by her at the end ' thereof, but also implies that she did not sign it at all. The attestation clause signed by the witnesses recites that the foregoing instrument was signed by the said Arminda S. Nicholson in our presence, but this does not change the facts, and in the absence of a signature is without legal effect. If a scrivener had prepared the will and had Written her name where it appears in the attestation clause, her name there would have been merely descriptio personae; and when it is shown that the testatrix was her own scrivener, tbe natural presumption is that it was so intended; and even if tbe fact was that tbe testatrix wrote ber name there, intending by that act to sign ber will, still ber signature would not be at tbe end of tbe will, and ber intention could not have tbe effect of transposing it. Tbe question is, not wbat did tbe testatrix intend, but wbat did sbe do?”

Tbe decree is reversed at tbe costs of tbe appellee, and it is ordered that tbe letters testamentary be revoked and tbe probate vacated.