St. Louis Hosp. Ass'n v. Williams' Adm'r

• Decision Date: 31 March 1854
• Citation: 19 Mo. 609
• Parties: THE ST. LOUIS HOSPITAL ASSOCIATION, Respondent, v. WILLIAMS' ADMINISTRATOR, Appellant.
• Court: Missouri Supreme Court

19 Mo. 609

THE ST. LOUIS HOSPITAL ASSOCIATION, Respondent,

v.WILLIAMS' ADMINISTRATOR, Appellant.

Supreme Court of Missouri.

March Term, 1854.

1. Under the fourth section of the act concerning wills, (R. C. 1845,) a mark is a sufficient signing by the testator, notwithstanding he was able to write.

2. But if, in addition to the mark, the testator's name is signed to the will by another, at his request, the will is void, unless the person who writes the testator's name signs his own name as a witness, and states that he subscribed the testator's name, at his request, as required by the fifth section of the act. (McGee v. Porter, 14 Mo. 611, affirmed.)

3. The supreme court will not infer one fact from other facts found by the court below.

4. A devise to a corporation will not be avoided by an immaterial variation in the name.

Appeal from St. Louis Circuit Court.

Barton Bates, for appellant.

I. The fifth section of the act of 1845, concerning “Wills,” (R. C. 1845,) required that the witness to this will, who wrote the testator's name should have stated that he subscribed the testator's name at his request; and without that statement, the paper was void as a will. McGee v. Porter, 14 Mo. 611. The making of a mark was not of itself a sufficient signing. The law requires that the testator's name shall appear to the will, and it provides for those cases in which the testator is not able to sign himself, by allowing his signature to be made by another at his verbal request; but imposed upon the agent the duty of stating that he did so write the name.

II. The plaintiff cannot claim the devise, which was to the St. Louis Hospital. A corporation can only be known by its corporate name.

A. P. & P. B. Garesche, for respondent.

I. A mark is a sufficient signing by the testator within the meaning of the fourth section of the act concerning wills. 2 Greenleaf's Ev. § 674; 1 Powell on Devises, 78; 5 Johns. 144; 3 Curteis, 7 Eng. Ecc. Rep. 752; 3 Nev. & Per. Rep. 228; 8 Adol. & Ellis, 94; 1 Jarman on Wills, 111.

II. The will having been sufficiently signed by the testator himself, it was not necessary to follow the directions of the fifth section which is only applicable to a case where the testator does not sign himself. Butler v. Benson, 1 Barb. S. C. 526; 4 Harr. (Del.) 350; 2 ib. 448. In the case of McGee v. Porter, 14 Mo. 611, there was no signing by the testator himself. 3 Strobhart's (S. C.) 297; 1 Jarman on Wills, 189.

III. A corporation need not be described by its corporate name, if the corporation intended can be precisely ascertained. Parol testimony is inadmissible to correct improper description of person in devises. Roper on Legacies, (1st Am. from 3d Lond. ed.) pp. 132 et seq. and cases there cited. 1 Powell on Devises, p. 99, 283, marginal, 337, 483.

SCOTT, Judge, delivered the opinion of the court.

This was a proceeding in the Circuit Court of St. Louis county, under the 31st section of the act respecting wills, in order to establish the will of John Williams, which had been offered for probate by the respondent, and been rejected. The will was made on the 9th day of June, 1849, and was presented for probate and rejected the 13th day of the same month, in the same year.

The will was authenticated in this manner:

JOHN his + mark. WILLIAMS,'

And was attested by two subscribing witnesses, as is required by the fourth section of the act concerning wills. Neither of the subscribing witnesses, in his attestation of the will, stated that he subscribed the testator's name, at his request, in pursuance to the requisition of the fifth section of the act. The trial of the cause was by the court, whose finding as to the material facts involved in this controversy, was as follows:

“That the paper dated June 9th, 1849, offered for proof, as the will of John Williams, was written by P. B. Garesche, at the request of said Williams; that said Williams, being sick, was unable to sit up so as to write his name, and said Garesche then wrote the words or name, “John Williams,” at the bottom of the will, and said Williams made his mark, between the words “John” and Williams,” and acknowledged the mark as his signature, and published and declared the paper, so signed, as and for his last will and testament.” The finding continues, and shows that...