Batchelor v. Powers
| Decision Date | 03 August 1977 |
| Docket Number | No. 49520,49520 |
| Citation | 348 So.2d 776 |
| Parties | George M. BATCHELOR et al., v. Estate of Robert Burney POWERS, Deceased. |
| Court | Mississippi Supreme Court |
Edward L. Cates, Jackson, Everette Verhine, Vicksburg, for appellants.
Dabney & Dabney, Lucius B. Dabney, Jr., Wesley R. Lominick, Jr., Vicksburg, for appellee.
Before PATTERSON, SMITH and LEE, JJ.
SMITH, Justice, for the Court:
Letters of administration were granted to Alice Powers Smith, upon the estate of her brother, Robert Burney Powers, deceased, by the Chancery Court of Warren County. Several months afterward, a document, purporting to be the last will and testament of Robert Burney Powers was offered for probate by appellants, George M. Batchelor and others. This document was entirely typewritten, signed by Robert Burney Powers and bore the certificate of a notary public that it had been "sworn to and subscribed before me" followed by the signature and seal of the notary.
The validity of the document as a will was challenged by the administratrix upon the ground that it was neither wholly written and subscribed by the testator nor attested by two or more credible witnesses in the presence of the testator as required by Mississippi Code Annotated section 91-5-1 (1972).
The chancery court declined to admit the document to probate as the will of Powers and this appeal resulted.
The single question presented is whether a document purporting to be a will and not wholly written and subscribed by the testator must be signed by two attesting witnesses. It is undisputed in this case that the document proffered was neither wholly written and subscribed by the alleged testator nor signed by two attesting witnesses. It is argued that the term "attesting witnesses" as used in the Mississippi statute does not contemplate nor require that such witnesses sign the will. It appears from a review of the numerous cases in Mississippi dealing with will contests over the years that this Court has used interchangeably the terms "attesting" witness and "subscribing" witness. Moreover, the word "attest" is defined in Webster's New International Dictionary (2d ed. 1950) as (1) to bear witness to; to certify; to affirm to be true or genuine; specif., to witness and authenticate by signing as a witness. The word "attestation" is defined as the formal authentication of an act or instrument by a subscribing witness or an official.
Ballentine's Law Dictionary (2d ed. 1948) gives the following definitions of the term "attest":
Attestation. The act of witnessing the actual execution of a paper and signing one's name as a witness to that fact. See note to Manufacturers' Finance Co. v. Amazon Cotton Mills Co., 29 A.L.R. 944.
Attesting witness. A person who signs his name on a document as a witness to the act of another in affixing his signature to the document. See Jenkins v. Dawes, 115 Mass. 599, 600.
Moreover, it appears to be the general rule although there is some authority to the contrary, that the word "attestation" includes not only the mental act of observation, but also the manual one of subscription.
Attested. The usual meaning of the word includes not only the mere mental act of the witness in observing the execution of the instrument, but also his manual subscription of his name as a witness thereto. See 57 Am.Jur. Wills, § 273.
The view entertained by this Court in regard to this matter is reflected in Seab v. Seab, 203 So.2d 478 (Miss.1967), a case in which the Court dealt with an instrument purporting to be the will of Howard A. Seab. The Court stated:
F. E. Seab and J. D. Seab on May 22, 1948, executed an instrument purporting to be their last will and testament. . . . This instrument was not witnessed by two subscribing witnesses as required by Mississippi Code 1942 Annotated section 657 (1956), and could not be and was not wholly in the handwriting of each; neither was it wholly in the handwriting of either. It was acknowledged before a...
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Madden v. Rhodes
...388, 24 So.2d 841 (1946). And if a typewritten will is not signed by at least two credible witnesses, it is invalid. See Batchelor v. Powers, 348 So.2d 776 (Miss.1977). It matters not that the testator was of sound mind, was of appropriate age, had full knowledge of what properties he owned......
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ESTATE OF GRIFFITH v. Griffith
...will must be "attested" by at least two witnesses. Id. This Court examined the meaning of this statutory term in Batchelor v. Powers' Estate, 348 So.2d 776, 776-77 (Miss.1977). The Court held that "`attestation' includes not only the mental act of observation, but also includes the manual o......
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McKellar's Estate, Matter of, 51765
...Mrs. Easterling learned from Miss Cochran, and not from Mrs. Polk, that Mrs. Polk had signed the instrument. We held in Batchelor v. Powers, 348 So.2d 776 (Miss.1977) that "attested" means (1) the mental act of observation, and (2) the statutory manual act of subscription by attesting witne......
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IN RE ESTATE OF McDEVITT
...the question of the necessity of witnesses attesting a will in the presence of the testator or testatrix in Batchelor v. Powers, 348 So.2d 776, 777 (Miss.1977), and held as The history of will contests in Mississippi supports the view that the requirements that there be two attesting witnes......