Catlett v. Catlett

• Citation: 55 Mo. 330
• Parties: JOHN CATLETT, et al., Appellants, v. HESTER D. CATLETT, Respondent.
• Decision Date: 28 February 1874
• Court: United States State Supreme Court of Missouri

55 Mo. 330

JOHN CATLETT, et al., Appellants,

v.HESTER D. CATLETT, Respondent.

Supreme Court of Missouri.

February Term, 1874.

Appeal from the Sullivan Circuit Court.

G. D. Burgess, for Appellants.

I. The paper propounded as the will of Henry Catlett, deceased, was not written in his presence nor by him, nor was the same signed by him or any person, by his direction, in his presence, as required by the statute. (Wagn. Stat., 1364, § 3; Rigg vs. Wilton, 13 Ills., 18; Dunlap vs. Dunlap, 10 Watts, 153; Northcutt vs. Northcutt, 20 Mo., 268.)

Our statute in regard to the manner of executing wills is mandatory, and a will not executed in conformity with the act is void. (McGee vs. Porter, 14 Mo., 611; see also Ruoff's Appeal, 26 Penn. St., 219; Stricker vs. Graves, 1 Whart., 395; Ramsey vs. Ramsey, 13 Gratt. [Va.], 664; 2 Greenl. Ev., § 347; PublicAdm'r vs. Watts, 1 Paige Ch., 347; Northcutt vs. Northcutt, 20 Mo., 268; Selden vs. Coalter, 2 Va. Cas., 553; note with last case, no. 29, pages 211 & 212, § 12; 1 Red. Wills [2d Ed.] § 12, supra.)

The cases of Armstrong vs. Armstrong, 29 Ala. [N. S.], 538; Sarah Miles Will, 4 Dana [Ky.], 1; Converse vs. Converse, 21 Vt. 168, so much relied on by the respondent, are cases where the will was written in the presence of the testators. The will in the case of Selden vs. Coalter, 2 Va. Cases, was also written in the presence of the testator. Where that is the case, there is perhaps some reason for saying, that it is properly executed, for then, although the will is written by another, the name of the testator is written in his presence and by his direction, and this might be considered as bringing it within the statute. But even this doctrine is denounced in the cases of Selden vs. Coalter, 2 Va., Cases 553; Dunlap vs. Dunlap, 10 Watts, 153; Red. on Wills, Vol. 1., pp. 211 & 212 [2 Ed.], § 12.)

It was immaterial under the statute of frauds, in what part of the will the testator's name was written, but the signature must have been made with the design of authenticating the nstrument. (2 Jarm. Wills, 115; Waller vs. Waller, 1 Grat., 454.)

Alex. W. Mullins and George W. Easley, for Respondent.

I. The material inquiry in the case at bar is: What will amount to a sufficient signing by the testator?

In seeking the proper construction of the word signed, we are greatly aided by the adjudications that immediately followed the first enactment of the statute in England. In Lemayne vs. Stanley, 3 Levinz. 1, the will was written by the testator, who commenced it as follows: “I, John Stanley, make this my last will and testament,” etc. He sealed, but did not sign it at the bottom. It was subscribed by the requisite number of witnesses, in his presence. This was held to be a sufficient signing. And in Morrison vs. Turnour, 18 Ves., 183, Lord Eldon is said to have observed, “that the decision in the case of Lemayne vs. Stanley, could not be sustained, unless you add one or two circumstances; either that the witnesses were present when he, the testator, was writing the will, which Lord Hardwick observes was not a natural presumption; or, if they were not present, that he acknowledged it to be in his writing when he called them in to attest; certainly expressing his opinion that such acknowledgment would do.” (1 Pow. on Dev. 75, note 9.) With this modification, Lemayne vs. Stanley has been accepted as the law in the following among other English cases: Hilton vs. King, 3 Lev., 86; Grayson vs. Atkinson, 2 Ves. Sr., 454; Coles vs. Trecothick, 9 Ves., 249; Morrison vs. Turnour, 18 Ves., 183. See also the following authorities: 2 Greenl. Ev., § 674; 1 Jarm. on Wills, 70, 112, & c., of 2 Am. Ed.; 1 Williams on Ex. 56 to 63; 3 Greenl. Cruise, [2d. Ed.] 51; Tit. 38, c. 5, § 10; Id. p. 55, §§ 17, 18, n. 1; Cravens vs. Faulconer, 28 Mo., 19.

The construction of the word signed, as required by the Statute of Frauds, as settled by the British Courts at the time of the adoption of our Statute of Wills, is that, if the party making such paper for the purpose of authenticating the same, writes his name, either by his own hand or the hand of another, or adopts one written or printed by another, in any part of the paper, this is a sufficient signing; and the construction of the statute by the British decisions, before the adoption of our statute ought to be regarded as the construction which our legislature intended to be put upon our own. (Armstrong vs. Armstrong, 29 Ala., [N. S.] 538.) And the doctrines of the English cases before 1838, have been followed by others of the American Courts. (Selden vs. Coalter, 2 Va. Ca., 553; Sarah Miles' Will, 4 Dana [[[Ky.], 1; Converse vs. Converse, 21 Vt., 168, 286.)

It is a point well settled, that if the name of the party appears in the memorandum, and is applicable to the whole substance of the writing, and is put there by him or his authority, it is immaterial in what part of the instrument it appears; whether at the top, in the middle or at the bottom. (Cleason vs. Bailey, 14 Johns., 486; see also Browne Frauds, § 376; 4 Kent's Com., 511, page 687 [11th Ed.], note b.)

II. It was not an insuperable objection to the will, that testator's name was not written in his presence. (Schneider vs. Norris, 2 Maule & Selw., 286; 8 Esp., 181; 2 Bos. & Pull., 238.)

III. When a will is not written by the hand of the testator, and his name is not subscribed thereto, the material question is, whether he intended the paper to operate as his will without any further execution? Did Catlett contemplate the further signing of the will? Evidently he did not. It will be noticed that Catlett followed carefully Miller's instructions, as conveyed to him by Judge Davis. These instructions impressed upon Catlett the necessity of the attestation of the two witnesses; but did not contain the least intimation to direct Catlett's mind to the fact that he ought to sign the will himself. And the fact that Catlett called upon Davis and Yoho to witness the will, is wholly inconsistent with the idea that he intended to sign it himself, at some future time.

Catlett declared the paper to be his will; had it witnessed by his neighbors; handed it to his father-in-law, with directions to him to have it conveyed to Mrs. Catlett, which was done, and the paper put away in a secure place; and so far as the evidence shows, was neither spoken or thought of after that by Catlett, who died entertaining the belief that he had formally made his will, a belief that was shared in by his family, neighbors and friends.

But the opponents of this will may say that the will is incomplete on its face, because Miller added the clause, “In witness whereof,” &c. And it is true that this clause does furnish some evidence of an intention to formally sign it, but it is only slight evidence of such intention, and may be rebutted by any other evidence which will show that no such intention, in fact, existed. Sarah Miles' will concluded: “In ratification of which, I have hereunto set my hand and affixed my seal,” &c. (4 Dana, 1); see also Medling vs. Pace, 14 Ga., 596, cited in 14 U. S. Dig., 594, §§ 84, 90; 1 Williams Ex., 61, and the authorities collected.

VORIES, Judge, delivered the opinion of the court.

Henry Catlett died at the county of Sullivan, on the 30th day of October, 1872, without issue. He left surviving him, among the plaintiffs his brothers and sisters, and his wife, the defendant. He left the following instrument of writing, purporting to be his last will and testament: “I, Henry Catlett, of the county of Sullivan, in the State of Missouri, do make and publish this, my last will and testament: 1st. I, give and bequeath, to my beloved wife, Hester Druzilla, to have and to hold in fee, all my lands and tenements and hereditaments, with the appurtenances, whereof I am seized, situate, lying and being in the county of Sullivan and State of Missouri, and described as follows to-wit: The south (1-2) one-half of the south-east (1-4) one-fourth, and the north (1-2) one-half of the south-east (1-4) one-fourth, of section (11) eleven, township (62) sixty-two, and Range (20) twenty, being in all, (160) one hundred and sixty acres, more or less. In addition to the above, I also bequeath to my wife, Hester Druzilla, all my monies, credits and chattels, of every description; to have and hold or to dispose [of] at will. And I hereby appoint my wife, Hester Druzilla, executrix of this my last will and testament. In witness whereof I have hereunto set my hand, this 24th day of October, A. D. 1872. “Signed, published and declared, by the said Henry Catlett, as, and for, his last will and testament, in presence of us, who, at his request, have signed as witnesses to the same, in his presence, and in the presence of each other.

WILLIAM W. DAVIS.

JAMES W. YOHO.”

This paper was presented for probate, to the Hon. James Beatty, Judge of Probate for Sullivan county, on the 27th day of November, 1872; and was admitted to probate on the evidence of the subscribing witnesses, and a certificate thereof granted, on the third day of December, 1872.

This action was brought on the 26th day of February, 1873, by the plaintiffs, in the Circuit Court of Sullivan county, to contest the validity of said will, on the sole ground that the same was not executed in conformity with the statute. The cause coming on for trial at the October Term, 1873, of said Circuit Court, an issue was made up, whether the writing produced was the will of said Henry Catlett, or not; and such issue was submitted to a jury. The defendant to sustain the issue upon her part, introduced as a witness, Judge William W. Davis, who testified as follows: (The paper produced as the will of Henry Catlett being shown him,) “The signature to this paper, William W. Davis, is mine. I signed my name there at the request of Henry Catlett, deceased. He asked me to do so to witness that this was his last will and testament. Mr. Catlett was then at home, at his residence, lying on his bed, in...