Sheehan v. Kearney

Decision Date14 December 1896
Citation21 So. 41,82 Miss. 688
CourtMississippi Supreme Court
PartiesTIMOTHY N. SHEEHAN ET AL. v. ELLA KEARNEY ET AL. [*]

FROM the chancery court of Lauderdale county, HON. NATHAN C. HILL Chancellor.

Sheehan and others, appellants, were contestants, and Mrs. Kearney and others appellees, were proponents in the court below. The suit was a contest of the last will and testament of one Cornelius Sheehan, deceased. The court below peremptorily instructed the jury in favor of proponents, and from a decree based on a verdict so given the contestants appealed to the supreme court. The opinion states all the facts necessary to an understanding of the case.

Reversed and remanded.

A. J Russell, W. R. Woods, W. T. Houston, G. B. Huddleston, J. W Sheehan, and Ham, Witherspoon & Witherspoon, for appellants.

Miller & Baskin, Fewell & Brahan and Mcintosh & McIntosh, for appellees.

[The briefs of counsel in this case have been withdrawn or lost from the record.]

OPINION

WHITFIELD, J.

We do not think the court erred in refusing the peremptory instruction asked by the contestants, the appellants here; but it was clearly erroneous to have given the peremptory instruction asked by appellees, the proponents of the will, upon the testimony in this record. This was peculiarly a case for the jury, under proper instructions from the court, as to the law. A verdict for either party, on this testimony, should not have been disturbed by the court, under proper instructions as to the law. And, as the case must go back for a new trial, we refrain from the expression of any opinion on the facts of the case. Facts are for the jury, the triers of issues of fact. But there are certain errors of law assigned which we will proceed to notice, that the case may, on the new trial, conform to the views herein expressed.

The contestants insist, in the first place, that the alleged will of Cornelius Sheehan was never, in fact, signed by him at all; that there is no signature of his, of any kind, to the will; that that which is called such is an illegible scrawl, no better that a straight line would be. They further insist, along this line of contention, that section 1520, of the Code of 1892, qualifies section 4488 of the same code, so as to require a testator to sign his name in his "proper handwriting," and that, hence, no one could sign his name for him, at his request, and that, if he be able to write, his "mark" will not do. This contention is not maintainable. Section 1520 of the code is found in the Chapter on "Definitions" and it means, manifestly, nothing more by the phrase, "shall always be in the proper handwriting of such person," than that the "signature" shall be written, as contradistinguished from engraved or lithographed or printed, in case the party be able to write; and, if he be not able to write, that it is meant that his "signature" in the cases provided by the statute, shall be made by "his proper mark," and not "printed, engraved, or lithographed." This statute does not require the signature to a will to be written out. A mark may still be adopted as a signature. The language in section 4488, "signed by the testator, . . . or by some other person in his presence . . . and by his express direction," demonstrates that the "signature" meant in section 4488 is not, necessarily, one written at all by the testator himself, and discriminates this case from Ferguson v. Board, 71 Miss. 524, 14 So. 81. It is this section which defines what is a proper signing of a will. The original of section 1520 is found in subdivision 19, sec. 4971, of the Revised Statutes of Wisconsin of 1878, and Justice Cassidy of the supreme court of Wisconsin, in his learned treatise on the Law of Wills, discussing this statute (sees. 63 and 118), says: "But a testator may properly sign by making his mark, independently of this statute, and, if he so sign, it may be unnecessary to prove that he could not write. If he could only sign by virtue of this statute, it might be necessary to prove, in the language of the statute, that he was unable to write. It follows that the testator may sign by his mark, as well as by writing his name--either his signature, initials, or a fictitious name." Any signature or mark signed by the testator, or by another in his presence and at his express direction, to the will, as and for his completed signature, and acknowledged and adopted by him as such at the time, in the presence of the subscribing witnesses, is a sufficient signing within the meaning of Code 1892, § 4488. It was said in Re Plate's Estate, 148 Pa. 55, 23 A. 1038: "exactly what constitutes a signing has never been reduced to a judicial formula. The principle upon which these cases proceeded was that whatever the testator . . . . was shown to have intended as his signature was a valid signing, no matter how imperfect, or unfinished, or fantastical, or illegible, or even false the separate characters or symbols he used might be, when critically judged." And we think this clearly correct. It is not necessary that he should write out his complete signature. It is enough that what he writes is intended for and adopted as his complete signature. But it must be carefully noted that, in all that we have thus far said, we have been speaking only of the mere physical act of signing. One without testamentary capacity may write his signature to an alleged will. The testator must have testamentary capacity, and the act of signing must be in exercise of that testamentary capacity. Again, one may have testamentary capacity, and yet be unduly influenced to sign. The testator's signature must be made in the exercise of testamentary capacity, and in the absence of undue influence. Both these grounds the want of testamentary capacity, and the existence of undue influence--are earnestly insisted on by the contestants, And we wish to be understood as intimating no opinion as to the effect of the evidence on either issue, but merely and only as defining what signing is sufficient, in law, under section 4488. It is only necessary to add, in this connection, that the mere steadying, by the draughtsman of the will, of the hand of a testator competent to make a will, and free from undue influence, is immaterial, provided the testator consciously performs, himself, the act of writing his signature. Watson v. Pipes, 32 Miss. 451.

It is next earnestly insisted by appellants, with great wealth of learning and marked force of reasoning, that the declaration of testamentary intention testified to by Taft, Moran, and O'Flyn should not have been admitted. It is conceded that such declarations by a testator as to the disposition he intends to make of his property, before the making of the will, and his declarations, after he has made the will, of what he had intended to do, or has done, in the disposition by will of his property, are admissible, on the issue of testamentary capacity, to show the state of his mind, whether sound or unsound. Such declarations would seem to be declarations symptomatic of the condition of the mind, as exclamations forced by pain or disease from a suffering body are symptomatic of such pain and illustrative of its nature and cause. Irrational exclamations may thus well be symptomatic in one case of a diseased mind, and exclamations of physical pain and anguish in the other case of a diseased body, and competent in both cases, for the same reason, as primary evidence. 1 Greenl. Ev., page 149, sec. 102, and note c.

But it is conceded that they should be admitted on that issue--testamentary capacity--alone, and on the ground indicated alone, and that the instruction to the jury trying the issue devisavit vel non should restrict the jury to their consideration in this aspect alone, and that they are never competent to show undue influence in the procurement of the will, whether made before or after the will. To support this contention counsel cites many authorities, relying chiefly on 2 Whart. Ev., sec. 992. But this section only holds, properly understood, that the genuineness of the will conceded, and no issue of undue influence or testamentary capacity being involved, the "intent is to be drawn from the will, and not the will from the intent," and that in such cases parol evidence is not competent to vary, enlarge, or contradict the will, not in such case challenged as being the testator's will. This is clearly shown by the fact that Love v. Buchanan, 40 Miss. 758, and Gilliam v. Chancellor, 43 Miss. 437, are cited by Mr. Wharton to support the text. In these cases and in Magee v. McNeil, 41 Miss. 17 there was no question raised as to testamentary capacity or undue influence, but, it being admitted that the instrument was the will of the testator, the effort was to explain, alter, or contradict the terms of the will by parol; and it was very properly held that this could not be done. The effort in Love v. Buchanan was to show that the word "heirs" did not embrace one who was an heir; in Magee v. McNeil, to show that a will, conditional as written, was intended to be unconditional; in Gilliam v. Chancellor, the effort was to show that a sum of $ 5,000, secured by a marriage contract, was intended to be satisfied by a legacy of $ 5,000, and in Gilliam v. Brown, 43 Miss. 641, the effort was similarly to show that a legacy of $ 15,000 was intended to satisfy an indebtedness of the testator to his brother, the legatee. In the last two cases of satisfaction or ademption by the legacy, the court did not deem it necessary to a decision to decide the point as to the competency of parol testimony. And, to place beyond dispute what was meant by Mr. Wharton in the section cited by counsel, he expressly declares the law on the precise point under review to be (Section 1012,...

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