In re Carey's Estate

• Decision Date: 01 December 1913
• Parties: In re CAREY'S ESTATE. v. PRICE et al. CAREY
• Court: Colorado Supreme Court

136 P. 1175

56 Colo. 77

In re CAREY'S ESTATE.

CAREY v. PRICE et al.

Supreme Court of Colorado

December 1, 1913

Appeal from District Court, Adams County; Charles McCall, Judge.

Application for the probate of the will of George Strachan Carey deceased, to which Richard John Carey filed objections. From a decree of the District Court affirming a decree of the County Court admitting the will to probate, contestant appeals. Affirmed.

Frank Prestidge and George L. Holdges, both of Denver, and George A. Garard, of Brington, for appellant.

Edward Ring and Harrie M. Humphreys, both of Denver, for appellees.

MUSSER C.J.

By this appeal it is sought to reverse a judgment of the district court admitting to probate a paper writing purporting to be the last will of George Strachan Carey. The judgment of the district court was a result of an appeal from the county court, where the writing had been admitted to probate as a will. The date of the purported will was February 26, 1900 and the subscribing witnesses fixed the time that they signed the paper at about that date.

The appellant calls attention to sections 4653 and 4670 Mills' Ann. St. (1st Ed.). The first section is an follows: 'All wills, by which any lands, tenements, hereditaments, annuities (or) rents are devised, shall be reduced to writing, and signed by the testator or testatrix or by some one in his or her presence, and by his and (or) her direction, and attested in the presence of the testator or testatrix, by two or more credible witnesses.' This section appears as section 2 of chapter 90, Rev. Stat. 1868; section 2789, Gen. Laws 1877; section 3482, Gen. St. 1883. In 1903, the law with reference to wills was revised, and the substance of that section now appears in Rev. Stat. 1908, § 7071, as follows: 'All wills by which any property, real or personal, is devised or bequeathed, shall be reduced to writing and signed by the testator, or by some one in his presence and by his direction, and attested in the presence of the testator, by two or more credible witnesses.' Section 4670, Mills' Ann. St. (1st Ed.) is as follows: 'If, upon the hearing of such proof, it shall satisfactorily appear by the testimony of two or more of the subscribing witnesses to such will, that they were present and saw the testator sign such will, and attested the same at his request, or that he acknowledged the same to be his last will, and that they believe the testator to be of sound mind and memory at the time of signing and acknowledging the same, the court shall admit the same to probate and record; provided, that no proof of fraud, compulsion or other improper conduct be exhibited, which, in the opinion of the court, shall be deemed sufficient to invalidate or destroy the same, and every will, testatment or codicil, when thus proven, shall be recorded by the clerk of the county court, in a book to be provided by him for that purpose, and shall be good and available in law, for the granting, conveying and assuring the lands, tenements and hereditaments, annuities, rents, goods and chattels therein and thereby given, granted and bequeathed.' That section appeared in chapter 90, Rev. Stat. 1868, as section 19, section 2806, Gen. Laws 1877, section 3499, Gen. St. 1883, and with some verbal modifications, not important in this case, it now appears as section 7088, Rev. Stat. 1908.

The appellant first contends that the paper writing in question was not executed or proven as provided by these statutes. He intimates that the evidence of one of the subscribing witnesses shows affirmatively that the signature of the testator was not on the paper writing at the time they signed it as witnesses. This cannot be said to be a correct statement of the result of the testimony. The only inference that can be drawn from the testimony of each of the subscribing witnesses is that at the time they testified they did not remember whether the signature of the testator was there or not when they affixed their signatures. They did not testify that it was there, neither did they testify that it was not there. Accepting this as the effect of their testimony, we understand the position of the appellant to be that such testimony was not sufficient to admit the will to probate. His position, as stated in the language of the brief, is as follows: 'The primary contention upon which our arguments will rest as to this branch of the case is that, in order that the paper writing here under consideration may be held to constitute a legal will, it must be established by legal proofs that the signature of George Strachan Carey was affixed thereto at the time the attesting witnesses affixed their signatures thereto or before the attesting witnesses separated on the occasion of the alleged execution of the paper as a will.'

The deceased was a bachelor and lived alone on and operated a large ranch in Adams county. Each of the subscribing witnesses testified that about the date of the paper writing, to wit, February 26, 1900, they were present with Mr. Carey in the kitchen of his ranch house. Mr. Carey went into another room and returned with pen and ink and the paper in question in his hand, and told them that it was his last will, and requested them to sign it as witnesses, which they did in the presence of Mr. Carey and each other. They both testified that they believed Mr. Carey was of sound mind and memory at that time. One of the witnesses, Mr. Patterson, testified that Mr. Carey sat down at the table and got up and requested them to sign it. As said before, each of the witnesses testified that he did not remember whether the signature of Mr. Carey was there or not at the time signed it. The signature could have been seen by them at the time, if it was there. The testimony showed that the body of the writing, as well as Mr. Carey's signature thereto, was in the handwriting of Mr. Carey. Mr. Carey died in November, 1908. After his death, the writing was found in his ranch house, among his personal effects, inclosed in a sealed envelope, on which was written, in the handwriting of Mr. Carey, a direction that it was to be sent to a named attorney in Denver. The trial, at which the subscribing witnesses testified, occurred in the district court in September, 1909, nearly ten years after they had written their names on the paper. The testimony, as stated above, was not contradicted in any way.

The witnesses did not see Mr. Carey sign the paper. The evidence shows a sufficient acknowledgment of it as the last will of the testator, if it was a will at the time the witnesses subscribed their names thereto. The question is: Was the evidence, in the absence of anything to the contrary, sufficient to establish that the signature of the testator was on the paper at that time, for there is no evidence that it was placed thereon by the testator after the witnesses had signed it and before they separated? This question has not been heretofore determined by this court.

In Hobart v. Hobart, 154 Ill. 610, 39 N.E. 581, 45 Am.St.Rep. 151, it is pointed out that some local statutes, particularly in New York, require that there must be an acknowledgment of his signature by the testator, while, in Illinois, it was sufficient when the witnesses did not see him sign the paper that the testator acknowledged the will be his act and deed, and the court was inclined to think that decisions from those states that require an acknowledgment of the signature were not applicable in Illinois. This difference in statutes is pointed out in Schouler on Wills, § 321, where the author states that one line of statute expression follows the old English statute of frauds, which made the will the subject of acknowledgment, while the other follows the statute of Victoria, which made the signature the subject of acknowledgment, and it is said that, when the statute makes the signature and not the will the subject of acknowledgment, a stricter rule of construction has been adopted.

The appellant, in his brief, admits that under the old statute of frauds a more liberal construction was adopted than under the Victorian statute. It must be borne in mind that our statute requires the will and not the signature to be the subject of acknowledgment. Our statute does not say that the will shall be acknowledged to be the act and deed of the testator, as in Illinois, but simply that he shall acknowledge it to be his last will. In the face of these differences as to construction in the two lines of statutes, our Legislature adopted a statute expression more in conformity with the old statute of frauds than with the Victorian statute. Our statute is the guide that our courts have as to the legislative intent in his state. It must have been intended thereby that the courts of this state should adopt a construction in harmony with that adopted under similar statute expressions by other courts, rather than a construction adopted under essentially different statutes.

It appears to us that the authorities upon which the appellant relies have reference to statutes wherein the signature and not the will is the subject of attestation and acknowledgment. Such cases can be authority here only by way of analogy, and when the facts are analogous also. His principal cases are from New York, where it seems the statute has particular reference to the signature of a testator.

In the matter of Mackay, 110 N.Y. 611, 18 N.E. 433, 1 L.R.A. 491, 6 Am.St.Rep. 409, the testator told the subscribing witnesses that the paper was his will. He handed it to them so folded that they could see no part of the writing except the attestation clause. They did not see either his signature or his seal. The direct evidence was that the witnesses did not see the signature and could not see it. At the...