In re Estate of Starke
| Decision Date | 16 January 1937 |
| Docket Number | 6448 |
| Citation | 271 N.W. 131,67 N.D. 178 |
| Court | North Dakota Supreme Court |
Syllabus by the Court.
1. Under our law, section 5649 of the Compiled Laws, a testator may direct another to subscribe the name of the testator to his will, and, where such person so directed subscribes the name in the presence of the testator, it is a sufficient signature to the will.
2. The person who in the presence and by the direction of the testator subscribes the testator's name to a will is required to write his own name as a witness, but his failure to do so does not invalidate the will itself.
3. Where a person who so writes the name of the testator signs as one of the attesting witnesses, it is not necessary for him to state on the instrument that he wrote the name of the testator at his request. Such fact may be shown when the signature is to be proved.
4. Where a will shows what appears to be the signature of the testator, so that on the face of the instrument it purports to be signed, and thereafter the signature is attacked extrinsic evidence may be introduced to show that the signature is in fact the signature of the testator.
5. Where it is proved that the signature of the testator was attached to the will by another in the presence and under the direction of the testator, the fact that thereafter the testator, at the suggestion of the writer, attached his mark is immaterial, the subsequent addition of the mark being superfluous.
Appeal from District Court, Barnes County; M. J. Englert, Judge.
Proceeding in the matter of the estate of Herman Starke, deceased wherein probate of the will of deceased, sought by Mollie Starke, was contested by Pauline Starke, Gertrude Schwirtz, also known as Gertrude Schwartz, William Kocher, and others. From an adverse judgment, the last two named contestants appeal.
Affirmed.
Hanchett, Sproul & Sad, George G. Chapin and Luke B. Henry, for appellants.
Whether the deceased intended to execute his will in conformity with the requirements of the statute must appear on the face of the will itself. This cannot be shown by parol evidence. Re Seaman (Cal.) 80 P. 700; Re Hewitt, 91 N.Y. 261; Warwick v. Warwick, 86 Va. 596, 10 S.E. 843; Patterson v. Ranson, 55 Ind. 402.
A subscription of any kind will not constitute a valid execution of a will unless made with the intention, on the part of the testator, of finally and completely authenticating the will. Plate's Estate, 148 Pa. 55, 23 A. 1033; Waller v. Waller, 1 Gratt. (Va.) 454, 43 Am. Dec. 564; Main v. Ryder, 84 Pa. 217.
The word "subscribe" is more restricted than the word "signature." Hagen v. Gresby, 34 N.D. 349, 159 N.W. 3.
The legislature, in using the word "subscribe" intended to restrict its meaning and to require some physical act, either a writing of the name or a making of a mark. Re McElwaine, 18 N.J.Eq. 499; Northcutt v. Northcutt, 20 Mo. 268; Re Manchester (Cal.) 163 P. 358.
There is no presumption in favor of the execution of a will. 1 Page, Wills, 2d ed. p. 1119.
A will must be executed in accordance with the requirements prescribed by statute or it is void. 68 C.J. 648; McGee v. Porteo, 14 Mo. 613; Pool v. Buffum, 3 Ore. 438; Re Will of Cornelius, 14 Ark. 675; Wilson v. Craig (Wash.) 150 P. 1179; Re Francis' Will, 132 N.Y.S. 695; Watson v. Billings, 38 Ark. 278; Hodges v. Doyle (Okla.) 151 P. 618.
The mark of one who cannot write is not a signature or subscription, unless the person writing for him, writes his own name as a witness under it. Kemper v. Todd (Okla.) 255 P. 701; Sivils v. Taylor, 12 Okla. 47, 69 P. 867.
The signing of a will to be a sufficient signing under the statute must be such as, upon the face of the instrument, appears to have been intended to give it authenticity. Warwick v. Warwick, 10 S.E. 843.
Attesting witnesses by their nature, name and designation, are to attest or witness something; that something is the signature to the will. Re Eakins, 13 Misc. 557, 35 N.Y.S. 489; Munn v. Ehlert (Mass.) 106 N.E. 163, L.R.A.1915B, 87.
Paulson & Pearce, for respondents.
Where in trial court, all of the testimony regarding the signing, execution and publication of a will by the testator, was elicited without objection on the grounds of incompetency, irrelevancy, immateriality or inadmissibility on any grounds, the appellants will be restricted to the question of the sufficiency of such evidence, and cannot on appeal raise for the first time any questions on the admissibility of such evidence. Edson v. Poppe, 24 S.D. 466, 124 N.W. 441; Harmon v. Haas, 61 N.D. 772, 241 N.W. 70, 80 A.L.R. 1131; State ex rel. Schlegel v. Munn, 216 Iowa 1232, 250 N.W. 471.
The attestation of a will is not insufficient because of absence of an attesting clause. Re Hull, 117 Iowa 738, 89 N.W. 979.
Neither an attestation clause nor a testimonium clause is a necessary part of a will. Re Sevveira, 205 A.D. 686, 200 N.Y.S. 464; Re Diener, 79 Neb. 569, 113 N.W. 149, 14 L.R.A.(N.S.) 259.
As no attestation clause is necessary, its form is immaterial. 68 C.J. 712.
Where the signature is by mark, the sole purpose of the marksman's name being written is by way of identifying and individualizing the mark. Johnson v. Davis, 95 Ala. 293, 10 So. 911; 58 C.J. 722.
A mark attached to a signature is evidence of the intention to adopt it; but this may also be done by any other act expressed clearly. Just v. Wise Twp. 42 Mich. 573, 4 N.W. 298; Re Canterbury, 198 Mich. 743, 165 N.W. 747.
A signature by mark unattested would be valid if proved. Chipman v. Perdue, 135 Ark. 559, 205 S.W. 892; Vanover v. Murphy, 12 Ky. L. Rep. 733, 15 S.W. 61; Henry v. Union Sawmill Co. 171 Ark. 1023, 287 S.W. 203; Re Arneson, 128 Wis. 112, 107 N.W. 21.
A testator may make his will and have another sign his name thereto at his direction; or he may make a mark which he adopts as his signature; or he may ask another to assist him in writing his signature. Re Lodge, 123 Neb. 531, 243 N.W. 781.
The will of Herman Starke was admitted to probate after contest. Appeal was taken to the district court. The jury found in favor of the proponents, and contestants appeal.
As stated by appellants, there is but one issue in this appeal -- was the will of Herman Starke subscribed and attested as required by law so as to entitle it to admission to probate?
The following facts are conclusively established. Herman Starke determined to make a will. He asked A. P. Paulson to draft it and to write his name as testator. Paulson wrote the name Herman Starke in the proper place for the subscription to the will. The will was thus signed by the testator in his presence and in the presence of Paulson and Dr. Macdonald and, at testator's request, Paulson and Dr. Macdonald signed the will in his presence and in the presence of each other as witnesses thereto. In an excess of caution Paulson, as scrivener, had the testator place a cross within his signature almost immediately after it was written by Paulson and as part of the transaction.
Appellants claim that the execution and attestation are defective in:
I.
"If the testator intended to finally authenticate the instrument at all, he intended to subscribe the instrument by mark and not otherwise.
II.
"Subscription by mark is fatally defective because the name of the person who wrote the testator's name does not appear as a witness to the mark, and there is no one who signed as a witness to the mark.
III.
"The face of the Will does not show who wrote the testator's name.
IV.
"If the Will is subscribed by Herman Starke or by someone for him at his request, there are not two attesting witnesses."
Our law is clear as to the requirements for execution and attestation. Section 5649 of the Compiled Laws provides, among other things, that the will "must be subscribed at the end thereof by the testator himself, or some person in his presence and by his direction must subscribe his name thereto." The testator did not write his name, but it is conclusively proved the testator directed Mr. Paulson to subscribe the name Herman Starke at the end of the will. This was done in the presence of the testator.
Section 5651 of the Compiled Laws provides that,
The fact is established that Mr. Paulson, who subscribed Herman Starke's name under his direction, did write his own name as a witness to the will. It is true that the statement, "I, A. P. Paulson, wrote Herman Starke's name at his direction" or one of similar import nowhere appears in the instrument; but the statute does not require this, and thus there are two attesting witnesses.
It is claimed that everything connected with the signature must appear on the face of the will, that it is conclusively shown Herman Starke did not write his own name, that there is nothing on the face of the will to show who wrote his name and therefore the will is not properly executed. In support appellants cite Warwick...
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