Thompson v. Thompson

• Citation: 68 N.W. 372,49 Neb. 157
• Parties: THOMPSON v. THOMPSON ET AL.
• Decision Date: 16 September 1896
• Court: Supreme Court of Nebraska

49 Neb. 157

68 N.W. 372

THOMPSON

v.THOMPSON ET AL.

Supreme Court of Nebraska.

Sept. 16, 1896.

Syllabus by the Court.

1. Section 127, c. 23, Comp. St., construed, and held: (1) Not to require the words composing the name of an illiterate testator to be written at the end of his will, either by himself, or by some person by his direction. (2) If the testator, being of sound mind, and with the intention of making a will, voluntarily made an X mark, cross, or other character which he intended and adopted as and for his signature, it satisfied the statute as to signing. (3) Not to require the witnesses to a will to subscribe it at the express request of the testator.

2. Where special interrogatories are submitted to a jury, and by it answered, and returned into court with their general verdict, and received and recorded therewith without objection, it is too late afterwards to insist that the court erred in receiving and recording the special interrogatories, because not signed by the foreman of the jury.

3. Evidence examined, and held to sustain the finding of the jury that the testator, at the date of the execution of his will, was of sound mind, and that he was not induced to execute the will by an undue influence which controlled his volition and destroyed his free agency.

Error to district court, Lancaster county; Tibbets, Judge.

From a judgment of the district court affirming a judgment of the county court admitting to probate a paper offered by John Thompson, Jr., and another, which purported to be the last will and testament of John Thompson, Sr., the proponent of an earlier will, James Thompson, brings error. Affirmed.Samuel J. Tuttle, for plaintiff in error.

Sawyer, Snell & Frost, for defendants in error.

RAGAN, C.

This is a proceeding in error to reverse a judgment of the district court of Lancaster county affirming a judgment of the county court of said county admitting to probate a paper purporting to be the last will and testament of John Thompson, Sr. The concluding portion of the will in controversy is in words and figures as follows:

“In testimony whereof, I hereunto set my hand and seal, and publish and declare this to be my last will and testament, in the presence of the witnesses named below, this 19th day of December, in the year of our Lord eighteen hundred and eighty-eight.

his “John Thompson Sr. X” mark.

“Signed, sealed, published, and declared by the said John Thompson, Sr., as and for his last will and testament, in the presence of us, who, in his presence, and at his request, have subscribed our names as witnesses hereto. This will is written with a typewriter, upon two sheets of paper.

A. J. Sawyer.

“A. L. Frost.”

It appears from the evidence that the Honorable A. J. Sawyer, at the date of the execution of the will in controversy, was a practicing attorney at law, having an office in the city of Lincoln; that on the date of the will the testator came to Mr. Sawyer's office, and informed him that he wished to make his will, wished Mr. Sawyer to draw it, and explained to him what he wished it to contain; that thereupon Mr. Sawyer dictated the will to a stenographer, and after it had been printed upon a typewriter he read the will over to the testator. It further appears from the evidence that the testator was illiterate, and unable to sign his name, and some one (presumably Mr. Sawyer) wrote the words, “John Thompson Sr. his mark.” The testator then took hold of the penholder, Mr. Sawyer also having hold of it, and made the character or cross (X) between the words “his” and “mark”; and in the testator's presence, and in the presence of each other, Mr. Sawyer and A. L. Frost subscribed the will as witnesses.

Section 127, c. 23, Comp. St., provides: “No will made within this state, except such nuncupative wills as are mentioned in the following section, shall be effectual to pass any estate, whether real or personal, nor to charge or in any way affect the same, unless it be in writing and signed by the testator or by some person in his presence, and by his express direction, and attested and subscribed in the presence of the testator by two or more competent witnesses; and if the witnesses are competent at the time of attesting the execution of the will, their subsequent incompetency from whatever cause it may arise, shall not prevent the probate and allowance of the will, if it be otherwise satisfactorily proved.”

1. The first argument relied on here for a reversal of this judgment is that the testator, by making his mark, did not sign the will, within the meaning of the statute just quoted; or, to express it differently, that a testator cannot sign his will by merely making his mark. To sustain this contention, we are cited to Greenough v. Greenough, 11 Pa. St. 489; Asay v. Hoover, 5 Pa. St. 21; and Grabill v. Barr, 5 Pa. St. 441. If it can be said that these cases are authority for the contention of counsel, it is sufficient to say that they have been expressly overruled by the supreme court of Pennsylvania in Vernon v. Kirk, 30 Pa. St. 222. But, so far as we have been able to examine the authorities, they are all to the effect that a testator who is, by reason of illiteracy, unable to write his name, may make a valid will by signing it with a mark or cross. In Jarm. on Wills (6th Am. Ed.) p. 125, it is said: “Where a testator is unable to write, from ignorance, perhaps a mark is to be preferred to a signature by the hand of another, as being the more usual mode of execution by illiterate persons; for, in regard to this and all other particulars, the prudent course is to make the execution of the...