Stone v. Holden (In re Norris' Estate)

• Decision Date: 29 December 1922
• Docket Number: No. 121.,121.
• Parties: In re NORRIS' ESTATE. STONE v. HOLDEN.
• Court: Michigan Supreme Court

221 Mich. 430

191 N.W. 238

In re NORRIS' ESTATE.

STONE

v.HOLDEN.

No. 121.

Supreme Court of Michigan.

Dec. 29, 1922.

Error to Circuit Court, Ingham County; Leland W. Carr, Judge.

Proceeding in probate in the matter of the estate of Jackson T. Norris, deceased, by Ella Stone, proponent, against Rizpah A. Holden, contestant of his will. From an adverse judgment on appeal to the circuit court, proponent brings error. Reversed, and new trial ordered.

Jackson T. Norris was at the time of his death a resident of Lansing. He had resided for some time with the contestant, his daughter, Rizpah A. Holden, and her husband, at 600 Shiawassee Street West. The proponent, Ella Stone, was a widow holding the position of assistant boys' matron at the School for the Blind. She had a sister who was a neighbor of the Holden family and who lived at 601 Shiawassee Street West. She visited at her sister's and stayed there when not at the School for the Blind. Mr. Norris and Mrs. Stone became acquainted. Their acquaintance progressed until they became engaged to be married. Mr. Norris then frequently called on her at the School for the Blind. Mr. Norris was not in good health and contemplated going to Biloxi, Miss., for the winter. On January 5, 1920, before leaving for Biloxi, Mr. Norris visited Mrs. Stone at the School for the Blind. He came shortly before 6 o'clock. Mrs. Stone as a part of her duties had to read to the boys beginning at 6 o'clock after they had their supper. Mrs. Spinning, a matron, was called into Mrs. Stone's office about 6 o'clock, Mr. Norris informing her that he had some business to transact. Mr. Norris took from his pocket a blank form of will and proceeded to fill it out. Mrs. Clark, another employé of the school, was called in soon after Mr. Norris had commenced to write. When Mr. Norris had completed the instrument he read it over carefully to the two ladies and requested them to sign as witnesses. Mrs. Spinning's recollection of details was more definite than Mrs. Clark's. She testifies that Mr. Norris stated that it was his last will and testament when he asked them to sign as witnesses, but the testimony of both of them establishes due publication of the will and a request for them to sign as subscribing witnesses. Mrs. Stone returned from her duties after the instrument was completed. Mr. Norris asked for an envelope which she gave him. He placed the instrument in the envelope, sealed it up, and handed it to Mrs. Stone with the statement: ‘This is proof of my love for you.’ She replied: ‘I need no proof of that. I know what you think of me.’ Mr. Norris returned from the South in the spring, and thereafter was almost a daily visitor of proponent. He died, however, in June before their contemplated marriage was consummated.

After Mr. Norris' death, Mrs. Stone took the sealed envelope to contestant, who opened it. She and her husband asked to be excused for a few minutes and upon their return informed Mrs. Stone that the instrument was not a valid will, as it had not been signed. The instrument is as follows, the italicized words being all written by Mr. Norris except the signature and residence of the subscribing witnesses:

‘I, Jackson T. Norris, of the city of Lansing in the county of Ingham state of Mich., being of sound mind and memory, do make, publish and declare this to be my last will and testament, in manner following, viz.:

‘First. I will and direct that all my just debts and funeral expenses be paid in full.

‘Second. I give, devise and bequeath to Mrs. Ella Stone of the city of Lansing Mich. one half of my estate. The other one half to my daughter Mr. Rizpah A. Holden 600 Shiawassee St., West Lansing, Mich.

‘I hereby appoint Mrs. Rizpah Holden and Mrs. Ella Stone city of Lansing executrix of this my last will and testament.

‘Lastly, I hereby revoke all former wills by me at any time made.

‘In witness whereof, I have hereunto set my hand and seal this 5th day of Jan. in the year of our Lord one thousand nine hundred and 1920.

________, [Seal.]

‘On this 5th day of Jan. A. D. 1920 Jackson T. Norris of Lansing in the county of Ingham state of Mich. signed the foregoing instrument in our presence, and declared it to be his last will and testament, and as witness thereof, we do now, at his request, and in his presence, and in the presence of each other, hereunto subscribe our names.

‘ Mrs. Celia Clark residing at Lansing, Mich.

‘ Mr. Jane E. Spinning residing at Lansing, Mich.’

The instrument was admitted to probate by the probate court of Ingham county. On appeal it was disallowed by the jury; the trial judge having submitted to the jury to determine whether Mr. Norris intended that his name written in the body of the instrument and attestation clause should stand as his signature to the instrument. Both sides had asked for a directed verdict.

Argued before FELLOWS, C. J., and WIEST, McDONALD, CLARK, BIRD, SHARPE, and STEERE, JJ.Joseph H. Dunnebacke, of Lansing, for appellant.

Thomas, Shields & Silsbee, of Lansing, for appellee.

FELLOWS, C. J. (after stating the facts as above).

We shall consider the single question of whether the court should have directed a verdict sustaining the will. The question is concededly an open one in this jurisdiction. The case has been well briefed. An independent examination of the authorities in this country and in England discloses but few cases outside those cited by counsel which would assist the court in reaching a conclusion. Our statute relative to the execution of wills (section 11821, C. L. 1915) follows the early English statute of Charles II (Stat. 29 Car. II, c. 3, § 5). Four years after the enactment of the English statute, and in 1681, it received judicial construction in Lemayne v. Stanley, 3 Lev. 1, 83 Eng. Reprint, 545. In that case one Stanley wrote his own will beginning:

‘In the name of God, Amen, I John Stanley, make this my last will and testament.’

He did not subscribe his name to the will. The question before the court was whether this was a sufficient ‘signing’ under the English statute. The will was sustained--

‘* * * for, being written by himself, and his name in the will, it is a sufficient signing within the statute, which does not appoint where the will shall be signed, in the top, bottom, or margin, and therefore a signing in any part is sufficient.’

It is doubtless true that some courts in this country as well as the English courts have chafed under the holding of this early case; but it was followed in England until Parliament changed the statute by 1 Vict. c. 26, § 9, which required that the will ‘shall be signed at the foot or end thereof.’ This statute proved unsatisfactory and was further amended by 15 and 16 Vict. c. 24, § 1, which makes wills valid ‘* * * if the signature shall be so placed at or after, or following, or under, or beside, or opposite to the end of the will, that it shall be apparent on the face of the will that the testator intended to give effect by such his signature to the writing signed as his will,’ followed by other provisions quite materially affecting the act passed in the first year of the reign of Victoria.

The early English statute of Charles II, enacted in 1677 as a part of the statute of frauds, was followed not only in this state, but in a large number of the states of the Union. Some of the states have changed their original statutes by amendment. We are persuaded that the tendency of the courts of those states which have left their statutes unimpaired by amendment is to follow the early English case of Lemayne v. Stanley, supra. That case placed a construction on the statute long before it was adopted in this country, and we took the statute impressed with that construction. We shall not discuss all the cases cited. Some of them, however, will be discussed. All of them have been examined.

Meads v. Earle, 205 Mass. 553, 91 N. E. 916,29 L. R. A. (N. S.) 63, is quite similar to the instant case. The will there involved was that of Sarah J. Armstrong. She was about to sail for Italy, and procured a blank which she filled out writing her own name at the beginning and in the attestation clause. She did not sign on the line provided in the blank for her signature. She requested the witnesses to sign as witnesses, and there was evidence of publication. It was held that there was a sufficient signing, citing Lemayne v. Stanley, supra.

The Vermont court in Adams v. Field, 21 Vt. 256, had a very similar question before it. The will in that case commenced:

‘I, Samuel Adams, of Westhaven,’ etc., ‘do hereby make this last will and testament.’

It was in the handwriting of the testator, but was not signed at the end. There was an attestation clause purporting to be signed by the requisite number of witnesses. The trial judge had submitted the case to the jury, who had sustained the will. It was held that the will was properly signed, and it was there said:

‘If the will, as the jury must have found in this case, was attested by three witnesses in the presence of the testator and in the presence of one another, and published by the testator in their presence, as his last will and testament, it was to all intents and purposes an adoption of such a signature, as was then affixed to the will; and if the will then had such a signature as could be held sufficient under the statute, nothing farther need be done. The will then becomes complete, and possesses all the finality which can be required. It is the same thing, in effect, as if the signature had been originally made animo signandi.’

Attention may be called to the fact that the Vermont case was sent to the jury, but the statement of facts shows that the testimony of the subscribing witnesses was in direct conflict, two of them denying their signatures and the execution of the will as testified by the other one. Manifestly these disputed facts took the case to the jury.

In Armstrong's Ex'r v. Armstrong's Heirs, 29 Ala. 538, the will had been...