International Trust Co. v. Anthony

• Decision Date: 03 May 1909
• Citation: 45 Colo. 474,101 P. 781
• Parties: INTERNATIONAL TRUST CO. v. ANTHONY et al.
• Court: Colorado Supreme Court

101 P. 781

45 Colo. 474

INTERNATIONAL TRUST CO. v. ANTHONY et al.

Supreme Court of Colorado

May 3, 1909

Appeal from District Court, City and County of Denver; Frank T Johnson, Judge.

Application by the International Trust Company, executor, for the probate of the will of Scott J. Anthony. From a judgment in favor of contestants, Charles E. Anthony and others, excluding a codicil from probate, the executor appeals. Affirmed.

Macbeth & May, for appellant.

Joseph C. Ewing and Stevick & Bannister, for appellees.

BAILEY, J.

Scott J. Anthony died on the 2d day of October, 1905, leaving his widow Frances B. Anthony as his sole direct heir. He left two papers of a testamentary character, the one a will of date November 27, 1901, and the other an attempted codicil thereto of date December 24, 1903. The will proper was duly passed to probate, without objection. Under the will the widow, and certain relatives of the testator were the devisees and legatees, and under the supposed codicil thereto the devisees and legatees are the same, but take different property interests in the estate, from those declared in the original testament. The relatives above referred to interposed objection to the probate of the alleged codicil upon the ground, among other things, that the same had not been executed and attested in conformity with the requirements of our statute, which latter objection is the only one here for consideration. While both of the attesting witnesses thereto saw Mr. Anthony execute the purported codicil, and heard him declare it to be such, the witness Mary B. Snow alone subscribed it in his presence. The other witness Augusta M. Lindall did not subscribe the same until some days after its execution, and then out of the presence of the testator.

Under our statute the formal requirements for the execution of wills are thus prescribed (section 4664, Mills' Ann. St Rev. Supp):

'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 witnesses.'

The provisions of this section by force of 'section 4662, Mills' Ann. St. Rev. Supp.' are extended to codicils of wills.

Under the facts here shown, and the assignment of errors, but one question is presented for determination, namely, Does the word 'attested,' as used in the statute, by legislative intent, include subscription? If yes, then the purported codicil must, as a matter of law, be rejected; if no, it should go to probate.

Counsel for appellant vigorously urge, and support their contention with suggestions of more or less persuasiveness and plausibility, that, under our statute, no subscription of their names to the attestation clause of a will by the witnesses to the execution thereof, is at all necessary, and that the mere fact of mental attestation, that is of observation and perception, is alone sufficient. Respectable authorities, but all in the nature of dicta, as we shall presently see, are cited to uphold this contention. However no authority has been found, at least none has been submitted, from a case depending solely for its decision, as does the one at bar, upon such holding. We have neither hesitancy nor doubt in declaring, under the requirements of our statute, governing the execution, proof and probate of wills, considered at large, that the word attested, by intent of the Legislature, includes not only the mental act of observing, but as well the manual one of subscription; and further that such subscription must, by the express terms of the statute, be in the presence of the testator, and upon this latter point there is no issue.

The determination of this case rests upon what the precise meaning of the word 'attested' is. It is therefore well to first consider the significance of its derivation, as this may prove an important aid in reaching an accurate and correct conclusion as to its true meaning. The term comes from the two Latin words 'ad' and 'testari,' which mean literally to witness to or to bear witness, and by all authority the term 'witnessed' includes 'subscription.' Thus the word must originally have stood for the idea, not only of observation, but of certification of the thing noted. Countless instances illustrative of the double use and significance of the term might be cited, both from English and American statutes and decisions. In support of the contention that this word carries such double meaning, as a matter of common usage, attention is directed to the following: In re Probate of D'Avignon's Will, 12 Colo.App. 489, 55 P. 936; In re Shapter's Estate, 35 Colo. 584, 85 P. 688, 6 L.R.A. (N. S.) 575, 117 Am.St.Rep 216; Gerrish v. Nason, 22 Me. 438, 39 Am.Dec. 584.

The dictionary definitions, without exception, show conclusively that the notion associated with the word 'attested,' both in its technical and nontechnical use, is that of observation and subscription. It would serve no good purpose to print here at length these definitions, except as they may appear from the authorities hereinafter quoted. Were there conflict among them, then discussion and citation might be servicable, but they all agree and show, to a demonstration, that as a matter of common usage this word, whether employed in a technical or nontechnical sense, always and invariably has associated with it the double significance of mental observation and manual certification by affixing to the attested paper the name or names of those so observing. It is impossible to believe, and equally difficult to hold, that the Legislature used this word in any other or different sense than the one which universally attaches to its ordinary and common use, for why should it?

By judicial finding, the word 'attested,' as used in written documents of various kinds, has frequently been construed in different branches of the law, and always, so far as we have been able to learn, to the effect that it includes subscription. Such construction has had to do with the attestation of deeds, powers, bills and notes, official process and records. That such seems to have been practically the uniform view of the courts, we cite: Logwood v. Hussey, 60 Ala. 417; White v. Magarahan, 87 Ga. 217, 13 S.E. 509; Wright et al. v. Wakeford, 4 Taunton, 213; Doe dem Spillsbury v. Burdette, 9 Adolphus & Ellis, 936; Grinnell v. Baxter, 17 Pick. (Mass.) 386; Shaw v. Smith, 150 Mass. 166, 22 N.E. 887, 6 L.R.A. 348; Maguire v. Church, 49 Conn. 248.

If then the word 'attestation' carries with it the notion and requirement of subscription, when used in reference to the execution and authentication of such matters as have been hereinabove referred to, it is not readily apparent why that meaning should, as by magic, disappear when used in connection with the attestation of wills and codicils thereto. Indeed we think that such is not in fact the case, for it seems clear that the same reasons which make manifest the necessity and demand for subscription in connection with the documents to which allusion is made above, would naturally indicate even stronger and more powerful reasons for a like demand and need in the attestation of wills.

There are but three of our states from the statutes of which the word 'subscription' in connection with the attestation of wills is omitted. Iowa, which substitutes the word 'witnessed' for 'attestation' and 'subscription'; Illinois and Colorado, whose statutes in this behalf are identical, and which use in this connection the word attested alone. Illinois has long since put at rest the dispute here involved.

In Calkins v. Calkins, 216 Ill. 548, 75 N.E. 182, 1 L.R.A. (N. S.) 393, 108 Am.St.Rep. 233, which contains its latest pronouncement on this question, the Supreme Court of that state said:

'Attestation is the act of witnessing the actual execution of an instrument and subscribing the name of the witness in testimony of the fact. 4 Cyc. 888. In the case of Drury v. Connell, 177 Ill. 43, 52 N.E. 368, it was said that the attestation of a will consists in the subscription of the names of the witnesses to the attestation clause as a declaration that the signature of the testator was affixed or the will acknowledged in their presence, and in the case of Sloan v. Sloan, 184 Ill. 579, 56 N.E. 952, the court considered the question whether there is a distinction between the attestation of a will and the subscription of the names of the witnesses. In that case the proponent offered to prove by one who was present that the will was signed by both the witnesses in his presence and that it was executed and published by the deceased as and for his last will in his presence, but it was said that a different rule had been too long acquiesced in and understood in this state, and that to render a will valid it must be subscribed by the attesting witnesses. The supposed distinction, as applied to our statute, was rejected, and it was held that an attesting witness must be a subscribing witness, and that it is not competent to prove a will by a person who was present and witnessed its execution but did not sign as an attesting witness.

'That the attestation mentioned in the statute consists in the witnesses subscribing their names is shown by other provision of our statute. In case of a deceased, insane or absent witness, the court may admit proof of the handwriting of such witness and admit the instrument to probate as though it had been proved by such subscribing witness in his or her proper person.'

That the decisions of Illinois, from which state our statute is bodily taken, are unanimously to the effect that the word 'attested' includes the act of certification by the actual...