Ginder v. Farnum

• Decision Date: 19 February 1848
• Citation: 10 Pa. 98
• Parties: GINDER <I>v.</I> FARNUM.
• Court: Pennsylvania Supreme Court

10 Pa. 98

GINDER v. FARNUM.

Supreme Court of Pennsylvania.

February 19, 1848.

Feb. 19.

IN error from the Common Pleas of Philadelphia.

Guillou and Kennedy, for plaintiff in error.—The object of the legislature was to prevent fraud — but a wide door is opened for it, if the mere proof of the signature at the end of a series of written papers, or of the signature of a deceased witness, suffices. Two witnesses are required by the act, and they must both prove every essential. The court cannot vary from the requisitions of the act: 10 W. 157; 1 Rand. 144.

The extreme anxiety of the courts to uphold this statutory requisition, is seen in the cases 5 Raw. 241; 1 Rand. 150; 6 S. & R. 47; 16 Ib. 88; 5 Barr, 446; 8 W. & S. 26; 1 Dall. 288. Without Knight's evidence, what proof is there that the several papers constituted a will; and, is it not plain, that if his sole testimony establishes this matter, but one witness proves this most material fact? The very point is decided in 3 Mod. 262. The precedents are a test of the construction of the rule. Each sheet should be signed by the testator, or the attestation should state the number of the sheets: 3 Wood Conv. 844; Gett's Forms, 84; 2 Grayd. Forms, 478; Taylor Prec. 17; Oliv. Prac. Conv. 502.

Meredith and Mallery, contrà.—Prior to the act, proof by two witnesses, without signing by the party, sufficed; that is now required, but in other respects no alteration is made. The completeness of the instrument produced is always assumed, for the contrary supposes a fraud, which may be rebutted by one witness, as was expressly decided in Lewis v. Lewis, 6 S. & R. 489, 495. It never was decided that there must be a signing on each sheet: 1 Const. Rep. N. C. 345. The proof given afforded primâ facie evidence: 5 W. 486, and the only doubt is on the single evidence of one subscribing witness — that may be contradicted: Skin. 413, Ib. 79; 1 Ves. & B. 208; 4 Burr. 2224. In 3 Mod. there were a will and codicil entirely separated, and there were not two subscribing witnesses to either of them. It was a question entirely under the statute of wills. The effect here would be, by establishing the last sheet, to take all the property from the very parties now objecting, who are legatees in the previous parts.

COULTER, J.

The position taken by the counsel for the plaintiff in error, and so earnestly maintained by him, is conceded. Every circumstance and fact necessary to make the execution of the will valid, under the act of Assembly, must be proved by two witnesses. In this case, however, the execution of the will was proved by two witnesses. One of the subscribing witnesses, being the scrivener who wrote it, proved the execution; and the partner of the deceased, who was perfectly acquainted with his handwriting, testified to the genuineness of the signature of the testator; the other subscribing witness, Eliza Somers, also proved her own signature, and stated that the deceased requested her to put it there, and that she saw the signature of Mr. Knight, the other witness to the paper, who was in the room when she was called in. The execution of the will was therefore legally proved, and competent to go to the jury. It is not necessary that the factum or body of the will should be proved by two witnesses; that is, that the devises and legacies should all or severally be proved by two witnesses; for if that were the law, no will could be valid unless two witnesses had heard it read to the testator, and heard him declare that it was his will. Whereas it has never been doubted in Pennsylvania, but that proof of the handwriting of the deceased who signed the instrument at the end thereof, was sufficient evidence of the execution. Our statute does not require that the witnesses should be subscribing witnesses; and the signature at the end of the will being genuine, raises the legal presumption that the testator was acquainted with the contents of the instrument. The matter alleged by the plaintiff in error, in avoidance of the will, is matter subsequent to, and not connected with, the execution. Whether sheets of paper or leaves have been substituted or added, must depend upon proof of facts and circumstances, and the countenance and appearance of the paper, and the character of the chirography, and is in fact a question of fraud, to be submitted to the jury upon the whole evidence of the case.

The real question here is, whether a fraud was committed after the execution of the paper.

Eliza Somers, one of the subscribing witnesses, testifies that she was called in after Mr. Knight, the other subscribing witness, had signed. And Houston, the testator, requested her to sign that paper as a witness, which she did, as requested. That she saw Knight's signature, but did not see that of the testator. She was sure there was but one sheet of paper in the instrument she witnessed, and that was...