Simmons v. Leonard

• Decision Date: 02 February 1892
• Citation: 18 S.W. 280
• Parties: SIMMONS <I>et al.</I> v. LEONARD <I>et al.</I>
• Court: Tennessee Supreme Court

18 S.W. 280

SIMMONS et al. v. LEONARD et al.

Supreme Court of Tennessee.

February 2, 1892.

Error to circuit court, Marshall county; ROBERT CANTRELL, Judge.

Bill by D. P. Simmons and others against John M. Leonard and others, executors under the will of Margaret Simmons, deceased, to set aside the will and for an accounting. From a decree in favor of defendants, complainants bring error. Reversed.

W. W. Walker, P. C. Smithson, and W. N. Cowden, for plaintiffs in error. Jones, Ewing & Murray, W. J. Leonard, and J. H. Lewis, for defendants in error.

CALDWELL, J.

This is a contested will case. In February, 1877, Miss Margaret Simmons, who was both old and illiterate, died at her residence in Marshall county, leaving a valuable tract of land and some personalty. In March following a certain paper writing, alleged to be her last will and testament, and making disposition of her entire estate, was admitted to probate, in common form, in the county court of that county. Dr. John M. Leonard, the principal devisee, was qualified as executor, at the same time. In July, 1887, D. P. Simmons, a brother of deceased, and other relatives, filed a bill in the chancery court, alleging that the said instrument was not her last will and testament, and seeking an account with the executor. In pursuance of the direction of the chancellor in interlocutory order, complainants sought to make up and try an issue of devisavit vel non in the circuit court; but the circuit judge refused to take jurisdiction because of the pendency of the suit in the chancery court. On appeal in error this court decided (89 Tenn. 622, 15 S. W. Rep. 444) that the circuit court alone had jurisdiction to try an issue of devisavit vel non, and thereupon remanded the case. The honorable circuit judge thereafter tried the issue without a jury, and pronounced judgment in favor of the will. Contestants have appealed in error.

Our first inquiry shall be whether or not Eleazar Cochran and W. F. McDaniel, whose names appear on the propounded instrument as those of subscribing witnesses, make out a case of due and formal execution under the statute. How that is can be determined only by a careful consideration of what they say occurred at the time, the certificate to which their names are attached being in proper form, and reciting all necessary facts. McDaniel testified that he was notified by Dr. John M. Leonard that Margaret Simmons wanted him to witness her will; that he afterwards went by Leonard's house, and they went together to her house, that she brought a paper out on the porch and told him she desired him to witness her will, whereupon he then and there, in her presence, and at her request, signed his name to the paper as a subscribing witness; that he, at that time, saw the names of Margaret Simmons, the testatrix, and Eleazar Cochran, the other subscribing witness, upon the paper; that no one was then present except the testatrix, Dr Leonard, a small negro, and witness; and, finally, the paper in contest being produced, the witness said it was the same to which he subscribed his name at the time and under the circumstances already detailed. This witness shows himself to have been competent, and by his testimony makes a case of due execution, so far as one subscribing witness can make it. It was not at all necessary that he should see the testatrix sign the paper, nor that he should subscribe it in the presence of the other witness. Logue v. Stanton, 5 Sneed, 98; Rose v. Allen, 1 Cold. 24; Bartee v. Thompson, 8 Baxt. 512; Beadles v. Alexander, 9 Baxt. 606; 2 Greenl. Ev. § 676; 1 Jarm. Wills, (Rand. & T. Ed.) 212, 213; Dewey v. Dewey, 1 Metc. (Mass.) 349; Jauncey v. Thorne, 2 Barb. Ch. 40; Burwell v. Corbin, 10 Amer. Dec. 494; Ela v. Edwards, 16 Gray, 92; Tilden v. Tilden, 13 Gray, 110; Ellis v. Smith, 1 Ves. Jr. 16; Eelbeck v. Granberry, 2 Amer. Dec. 624; Johnson v. Johnson, (Ind. Sup.) 7 N. E. Rep. 201; 4 Kent, Comm. *516; Rosser v. Franklin, 6 Grat. 1. Cochran, the other subscribing witness, died before the trial, and therefore could not be examined in the presence of the court; but his deposition, which had been taken in the chancery cause, was used as evidence in this case. He deposed that he was a neighbor of Margaret Simmons, deceased; that Dr. John M. Leonard called on him twice, and told him she wanted him to witness her will; that a negro man, living on her place, was subsequently sent for him, and he then went to her house; that he found her alone, and when he first got there she told him she wanted him "to sign a will" for her, though she did not then produce it, or say more about it; that Dr. Leonard afterwards came and "got the will out of the bureau, or off the top of it," and then, at the request of witness, signed the name of witness to it; that this request was made by witness because he was so nearly blind that he could not see well enough to sign his own name; that he (witness) did not have the will in his own hands, or see the testatrix have it in her hands, at any time; that she did not sign it in his presence, and he did not know whether she signed it before he went to her house or after he left, if at all; that he did not hear the will read, or learn its contents. His name, without more, is attached to the certificate. It is "ELEAZAR COCHRAN," simply, and not "ELEAZAR his X COCHRAN," as is usual when a person, mark. unable to write, has another sign his name for him. There is no mark or sign to indicate that Cochran did not sign his own name, though the fact is, as he states himself, that it was written by Dr. Leonard, at his request Clearly Cochran was not a proper subscribing witness. He was competent in the sense of being disinterested, but the part he took in the execution of the alleged will did not give him the full character and functions essential to a subscribing witness. His evidence does not establish such a subscription as the law requires. To constitute a valid will of real estate the instrument must be subscribed by two witnesses, at least, neither of whom is interested in the devise. Code, (Mill & V.) § 3003; Maxwell v. Hill, 89 Tenn. 588, 15 S. W. Rep. 253; Guthrie v. Owen, 2 Humph. 202; Davis v. Davis, 6 Lea, 543. The attempted subscription by Cochran is incomplete, because his name, being signed by another person, is not accompanied by some mark or sign indicating his adoption of that other person's act. This court has gone no further in liberal construction of the word "subscribe" than to hold that a person whose name is written by another, and who makes his mark thereto, is a good attesting witness to a will. Ford v. Ford, 7 Humph. 96, 97. Though a mark so made, is held to be a sufficient subscription, it is never advisable, where it can be avoided, to employ marksmen as witnesses. 1 Jarm. Wills, 213. It seems to have been deemed sufficient, not only because the name of the witness is written by his authority, but also because, in making his mark, he has a share in the writing; as when another person guides his hand and he makes his own signature. Chase v. Kittredge, 87 Amer. Dec. 694; Jesse v. Parker, 52 Amer. Dec. 102; Montgomery v. Perkins, 74 Amer. Dec. 419. By statute the word "`signature' or `subscription' includes a mark, the name being written near the mark, and witnessed." Code, (Mill. & V.) § 48. There is even a greater objection, if possible, to Cochran as a subscribing witness, though not interested in the devise himself. Dr. Leonard, who wrote his name for him, was the principal devisee under the will. This made the subscription utterly ineffectual. Cochran, though legally competent to become a subscribing witness, could not effectively perform the act of subscription through another person, who was legally incompetent to become such witness in his own name and right. To permit the devisee to write the name of the subscribing witness would expose the will to little less danger of wrongful alteration and substitution than would exist if the devisee himself were allowed to become the witness. The same evil consequences would follow in the one case as in the other. If he may sign the name of one subscribing witness, he may sign the names of both, and in that way become a more potent factor in the execution and probate of the will than if he were allowed to become a subscribing witness himself.

He may not lawfully take the matter so largely into his own hands. A proper construction of the statute excludes the devisee from the doing of any act, even for the subscribing witness, which is essential to a valid subscription. Again, though identification has always been the main reason for requiring...