Elston v. Price

• Decision Date: 20 December 1923
• Docket Number: 7 Div. 406.
• Parties: ELSTON v. PRICE.
• Court: Alabama Supreme Court

98 So. 573

210 Ala. 579

ELSTON v. PRICE.

7 Div. 406.

Supreme Court of Alabama

December 20, 1923

Rehearing Denied Jan. 24, 1924.

Appeal from Probate Court, Calhoun County; Thos. W. Coleman, Judge.

Petition of Allen Elston to probate the will of Susan E. Price deceased, and contest by N. J. Price. From a decree sustaining the contest, petitioner appeals. Affirmed.

Lapsley & Carr, of Anniston, for appellant.

Knox Acker, Sterne & Liles, of Anniston, for appellee.

GARDNER J.

The court below sustained the contest to the alleged will of Susan E. Price upon the ground the instrument offered for probate had not been attested by two witnesses, as required by our statute: Section 6172, Code 1907. Under this statute the instrument here in question to be effective as a will must have been "attested by at least two witnesses, who must subscribe their names thereto in the presence of the testator." Unless this requisite of the statute was complied with, the instrument was ineffectual to pass real or personal property. Woodruff v. Hundley, 127 Ala 640, 29 So. 98, 85 Am. St. Rep. 145; Blacksher v. Northrup, 176 Ala. 190, 57 So. 743, 42 L. R. A. (N. S.) 454.

Statutes of this character are enacted for the purpose of removing uncertainty as to the execution of wills and safeguard testators against frauds and impositions. Riley v. Riley, 36 Ala. 496; Brengle v. Tucker, 114 Md. 597, 80 A. 224; Dawkins v. Dawkins, 179 Ala. 666, 60 So. 289.

In Riley v. Riley, supra, it was held that one subscribing witness could not write the name of another subscribing witness, when the latter was able to write and does not physically participate in the signing, and thus bring the execution of the instrument within the statute. Speaking to this question the court said:

"To hold that these facts amounted to a valid execution and attestation of the will, would certainly weaken the safeguards against frauds and forgeries, which it was the purpose of the statute to provide. It is manifest that the signatures of the witnesses, written by themselves, furnish a reliable foundation for those legal presumptions in favor of the due execution of a will, which arise upon proof of the handwriting of the witnesses, when they are dead or out of the State. We think we consult sound public policy in deciding, that one of the subscribing witnesses to a will cannot sign the name of another who is himself well able to write, and who does not physically participate in the act of signing."

The cases of Riley v. Riley and Dawkins v. Dawkins, supra, are cited by way of illustration of the importance with which the court has viewed the compliance with the statute and the reasons therefor, though they bear no close analogy to the question here presented.

In discussing a statute of similar character, and calling attention to the fact that a will to be duly authenticated must be both attested and subscribed, the Supreme Court of New Hampshire, in Tilton v. Daniels, 79 N.H. 368, 109 A. 145, 8 A. L. R. 1073, makes use of the following quotations and definitions, which are here in point:

"Attestation 'consists in the witnesses seeing that those things exist and are done which the statute requires.' *** 'Attestation is the act of the senses; subscription is the act of the hand; the one is mental; the other mechanical.' *** To attest the signature means to take note mentally that the signature exists as a fact. If this is done, and the attestor also subscribes his name, the statute is complied with. The essential thing is that 'by the signature he meant to affirm that the deceased executed the will in his presence."'

In Smith v. Buffum, 226 Mass. 400, 115 N.E. 669, L. R. A. 1917D, 894, the Massachusetts court, speaking to a like question, said:

"Subscription applied to the witnessing of wills has been interpreted in England to mean the attachment to the instrument of any identifying writing with the purpose of identifying thereby the paper as the one signed by the testator and attested by the witness."

Numerous cases bearing upon this question may be found cited in the note to Tilton v. Daniels, s...