OPINION
MORLING, J.
Appellants
argue no assignment of error which would affect the verdict
of the jury finding the testator to have been mentally
competent. For all purposes of the appeal, therefore,
competency must be assumed.
Decedent
died April 22, 1929, at the age of 77. He and proponent
intermarried in 1902. They had no children. On January 21,
1929, testator suffered a severe stroke of paralysis, by
reason of which he was confined to his bed until his death.
On February 11, 1929, a priest called upon decedent, and
heard him say "Get McEvoy [a banker]. I want to make a
will." Voluntarily the priest went to the bank and told
McEvoy that decedent wanted to see him. McEvoy went to
decedent's house, and was conducted by proponent into
decedent's room. McEvoy testified that decedent said he
wanted him to take care of his business for him.
"He
said to Mrs. Burcham, 'I'm going to give my property
to you.' I asked him who he wanted as administrator.
Before I left, Mrs. Burcham suggested,--asked him--said,
'You will have me as administrator, won't you, Will,
dear?' He said, 'No, I want McEvoy to be the
administrator.' He said he wanted me to keep the will in
my possession. * * * I asked him who he wanted as witnesses.
He told me he would leave that to me. * * * After my
conversation with Mr. Burcham, I went down to the bank and
drew up the will as he asked me to. * * *"
The
will as McEvoy drew it had written on it, at the place for
signature, decedent's name, with a space between the
initials and the surname for a mark, and with the word
"my" above and the word "mark" below the
space left. McEvoy testified:
"I
gave it to Mr. Morrow [the cashier], and told him to get
another witness and go up to Mr. Burcham's with the will.
I have seen papers Mr. Burcham signed by mark. I never have
seen any where he signed his name to it. * * * Mr. Burcham
may have been able to sign his name in full. * * * He said he
wanted to give his property to Callie [proponent]. He did not
designate any part of it."
The
cashier, P. J. Morrow, testified:
"Mr.
McEvoy handed me this will, although I didn't know then
what it was until he told me that it was the will of G. W.
Burcham; that he had been up there, and
wanted me to get someone else who I thought would make a
competent witness to the will, to go up with the will and
have Mr. Burcham execute it. * * * W. T. Morrow and myself
went up to the house. * * * Mrs. Burcham went with us into *
* * the sick room, and I told Mr. Burcham * * * I had the
will prepared by Mr. McEvoy, and I asked Mrs. Burcham and Mr.
Morrow to step outside of the room, and I read the will
entirely, word by word, including the witnesses'
acknowledgment, * * * and asked him if that was his will, if
that is what he wanted. He said: 'Yes, that is exactly
the way I told Mr. McEvoy. He was here today.' Then I
called Mr. Morrow into the room. I believe Mrs. Burcham came
back in with him, and handed a pen to Mr. Burcham. He took it
in his hand, and I said, 'Now, if you will touch the pen,
I will make your mark right here,' and showed him the
place. I offered the will to him to read, but he said,
'No, go ahead and read it to me.' And William T.
Morrow and myself signed on both sheets of paper in his
presence and at his request. * * * I don't believe I said
anything to him or he to me about attempting to sign his
name. I had transacted business with Mr. Burcham prior to
that time. I had seen him make a mark instead of signing his
name prior to that time. * * * Q. Now, then, the paper
Exhibit 1, which you have referred to as the will, the mark
on it there, where it says 'G. W. Burcham, my mark;'
state whether or not that is the mark that was made when he
was holding the pen. A. Yes, sir. * * * I said, 'I have
brought Billy with me, to act as the other witness on your
will.' * * * He didn't say anything. After making his
mark there, he * * * said, 'Joe, take that paper to
McEvoy, and tell him not to show it or give it to anyone
until I call for it.' Nothing else took place there. * *
* I was there in the sick room not over ten minutes. * * * Q.
You called Bill Morrow and Mrs. Burcham into the sick room?
A. Yes, sir. Q. And when they came into the room, you said to
the decedent, the first thing, 'If you will take hold of
the pen, we are ready?' A. No. * * * I said to Morrow, I
said, 'Mr.
Burcham has a will here that he wants witnessed; he has asked
you and I to witness it.' * * * Then I turned to Mr.
Burcham and said, 'If you will take the pen, we are
ready.' * * * When I told him to hold the pen, and said
'We are ready,' he took hold of the pen, and I made
the mark, and Bill Morrow and I signed."
W. T. Morrow testified:
"All
was said, when Joe got ready to have him sign, he said
'Will, we are ready.' While Joe was reading the will
to him, * * * Mrs. Burcham and I stepped out of the room for
two or three minutes. Then I went back in. * * * Joe said,
'We are ready, Will, to sign,' he says, 'You take
hold of the pen, and I will hold it.' When Joe Morrow
made the mark, G. W. Burcham had hold of the pen. * * * Joe
said, 'Billy is a witness and I am a witness.' When
Joe said, 'Billy is a witness and I am a witness,'
Mr. Burcham...
