Ketchum v. Stearns

• Decision Date: 18 November 1879
• Citation: 8 Mo.App. 66
• Parties: V. S. KETCHUM ET AL., Appellants, v. HELEN STEARNS ET AL., Respondents.
• Court: Missouri Court of Appeals

8 Mo.App. 66

V. S. KETCHUM ET AL., Appellants, v. HELEN STEARNS ET AL., Respondents.

Court of Appeals of Missouri, St. Louis.

November 18, 1879

1. That the seal spoken of in the testatum clause of a properly witnessed will is not in fact affixed, does not show that the testator considered the will not fully executed when he signed it, and does not invalidate the will.

2. Certain testimony declared to have no tendency to show undue influence.

APPEAL from the St. Louis Circuit Court.

Affirmed.

MARSHALL & BARCLAY, for the apppellants: The will was never formally executed according to the intention of the testator.-- Avery v. Pixley, 4 Mass. 460; Main v. Ryder, 84 Pa.St. 219; McBride v. McBride, 26 Gratt. 484; Catlett v. Catlett, 55 Mo. 330; Re Maddock, 30 L. T. (N. S.) 696. Concerning the exclusion of evidence tending to show undue influence.--2 Greenl. on Ev., sect. 688; Pierce v. Pierce, 3 Cent. L. J. 225; Main v. Ryder, 84 Pa.St. 219; Mueller v Hospital, 5 Mo.App. 390; Moross v. Cicotte, 12 Mich. 461; Reynolds v. Adams, 8 Cent. L. J. 437; Doe v. Hardy, 1 Moo. & R. 525; 1 Redf. on Wills, 515, sect. 14.

CLINE JAMISON & DAY, for the respondents: The testimony offered did not tend to show undue influence, and was properly excluded.-- Gibson v. Gibson, 24 Mo. 227; Cawthorne v. Hays, 24 Mo. 237; Spoonemore v Cables, 66 Mo. 579. No evidence showing undue influence having been offered, the case was properly taken from the jury.-- Nolan v. Shickle, 3 Mo.App. 300; Schmidt v. Harkness, 3 Mo.App. 585; Lange v. Lycoming Ins. Co., 3 Mo.App. 591.

OPINION

LEWIS P. J.

Issue is taken in this cause on the alleged last will and testament of Solomon P. Ketchum. The paper concludes thus: " In testimony whereof, I, the said Solomon P. Ketchum, have to this, my last will and testament, contained on one sheet of paper, I have subscribed my name and affixed my seal this tenth day of August, in the year of Lord one thousand eight hundred and sixty-six.

SOLOMON P. KETCHUM."

No seal or scrawl is appended to the signature. Plaintiff's counsel argue that, although a seal is not necessary to the authentication of a will, yet, when the testator has signified his purpose to affix a seal, this shows an intention that the execution should not be complete without it. Hence, in this case, the will was never fully executed.

The question depends not so much upon the particular act or acts which the testator considered appropriate to the execution of his last will, as upon the fact that he did, or did not, consider it fully executed when his last touch was applied. As to this fact, the statement in the instrument of an intention to affix a seal is not conclusive. It is a circumstance entitled to more or less weight, as it may be affected by other facts shown in evidence. It sinks into insignificance in presence of the testator's declaration, upon signing his name in the presence of witnesses, that this is his last will and testament, duly executed and published. In a case where a will was written on several sheets of paper, the testimonium at the end referred to the preceding sheets as subscribed by the testator. The sheets were, in fact, not signed. This was held not to affect the validity of the will, as the testator evidently intended the signing of the last sheet to apply to the whole. Winsor v. Pratt, 2 Brod. & B. 650. It has been held, in cases where the testator, having signed in one place, yet contemplated another signature, which he never made, that the will should be considered unsigned. But " the reasoning," as is remarked by Jarman, " seems only to apply where the intention of repeating the signature remained to the last unchanged; for a name originally written with such design might afterwards be adopted by a testator as the final signature; and such, it is probable, would be the presumed intention if the testator acknowledged the instrument as his will to the attesting witnesses, without alluding to any further signing." 1 Jar. on Wills (2d Am. ed.), 113. The principle applies equally to an intended sealing, which was never consummated. In this case, the attesting witnesses certified that the testator, in their presence, " signed, sealed, published, and declared" the instrument in controversy " as and for his last will and testament." They confirmed their attestation by their testimony as witnesses on the trial. It does not appear that the testator, in publishing his will, made any reference to a future sealing. There can be no question that the authentication was final, in so far as the testator was concerned. In the cases cited by the plaintiff's counsel there is nothing antagonistic with these conclusions. In Main v. Ryder, 84 Pa.St. 217, the point considered was, as to the effect of the testator's failure to put his mark to the signature written for him, where it appeared that such was his intent in the final act of signing and publishing. The assumed parallel fails. In the present case, it does not appear that the testator, in the final act of publication, in presence of witnesses, intended to do anything more than he had already done. The will was written by the testator at his home, and was afterwards taken by him to the office of a real-estate agent for signature and attestation.

The testator had been married twice. The will gave to the plaintiffs, who were the children of his first wife, one dollar each, and to the defendant Sarah M. Ketchum, his second wife, for the term of...