In re Ephraim F. Claflin's Will

• Decision Date: 28 March 1901
• Citation: 50 A. 815,73 Vt. 129
• Parties: IN RE EPHRAIM F. CLAFLIN'S WILL
• Court: Vermont Supreme Court

50 A. 815

73 Vt. 129

IN RE EPHRAIM F. CLAFLIN'S WILL

Supreme Court of Vermont

March 28, 1901

October Term, 1900.

APPEAL from the allowance and probate of an instrument as the will of Ephraim F. Claflin. J. H. Bass and Orra Bass were proponents. Elmer F. Claflin and Bertha L. Blanchard were contestants. Trial by jury, Orange County, June Term, 1900 Start, J., presiding. At the close of the proponent's evidence a verdict was, on motion, directed for the contestants. The proponents excepted.

Judgment reversed and cause remanded.

J D. Denison for the proponents.

M M. Wilson and Darling & Darling for the contestants.

Present: TAFT, C. J., TYLER, MUNSON, WATSON and STAFFORD, JJ.

OPINION

WATSON

The probating of the will of Ephraim F. Claflin was contested on the ground that it was not properly executed. The instrument sought to be established as such will, was received in evidence, and it was conceded to be in the handwriting of the testator, except the signatures of the witnesses thereto, and the words "Ephraim F Claflin's Will" on the outside. It purports on its face to have been duly executed. The attestation clause reads, "Signed, sealed, published and declared by the said Ephraim F. Claflin as his last will and testament in the presence of us who have hereunto subscribed our names as witnesses thereof, at the request and in the presence of the said testator and in the presence of each other;" and it was signed by E. I. Claflin, E. O. Mann, and Josie E. Rand as witnesses. The evidence tended to show that the testator had charge of and superintended its execution, and that he was of sound mind; that he signed the instrument, and that it was signed by all the witnesses in the store of the witness E. I. Claflin at the testator's request and in his presence. Mann testified that the testator invited him and Mrs. Rand to witness his signature but did not tell them what the document was, whereupon they signed it in the presence of the testator and in the presence of each other; that the signature of E. I. Claflin was just above where they signed, at the time, but that he, Claflin, was not present and did not see them sign, nor were they present when he signed, nor did they see him sign; that E. I. Claflin was about his store there somewhere, but the witness did not know where; that witness had seen him there that day running the store. Referring to the same time and place, the witness also testified: "Q. And you cannot say that Mr. E. I. Claflin was not there? A. If he was, he was hid; he was not in my sight. Q. You can't tell but what you were in his sight can you? A. I might have been in his sight, but if I was I did not see him." Evidence was introduced tending to show declarations of Mann, out of court, to the effect that all of the attesting witnesses were present together and saw one another sign, and that the witness Claflin signed and then went to putting up goods in the store. Evidence was also introduced, of more or less force, tending to show that at the time Mann signed as a witness he knew he was witnessing the testator's will. Mrs. Rand testified that she recognized her signature but remembered nothing about the matter. E.I. Claflin testified that when he signed as a witness the testator asked him to sign that "document," but did not state what it was; that he supposed at the time from what there happened that he was witnessing the testator's will; that he did not know whether the other witnesses were then present or not, but he did not see them sign. The evidence tended to show that at the time of the execution of this instrument, the testator had been accustomed to draw wills, and to superintend their execution for other people, and knew the formalities required by law.

At the close of the proponents' evidence a verdict was ordered for the contestants, to which proponents excepted. The evidence, as stated herein, is given in its most favorable light for the proponents. Was it error to order a verdict, is the question.

It was not necessary for the testator to place his name on the paper in the presence of the attesting witnesses. If the will was signed by him without their presence, and he afterwards requested them to witness his signature, it was a sufficient acknowledgment of his signature, and a compliance with the law in this regard: Adams v. Field, 21 Vt 256; Baskin v. Baskin, 36 N.Y. 416. No form of words is necessary to indicate to witnesses that the testator intends to give effect to a paper as his will. Any communication of this idea by word, sign, motions, or conduct, is sufficient in law to constitute a publication, and herein every case must depend upon its own...