Tilton v. Daniels

• Decision Date: 03 February 1920
• Docket Number: No. 1637.,1637.
• Citation: 109 A. 145
• Parties: TILTON v. DANIELS.
• Court: New Hampshire Supreme Court

109 A. 145

TILTON

v. DANIELS.

No. 1637.

Supreme Court of New Hampshire. Grafton.

Feb. 3, 1920.

Transferred from Superior Court, Grafton County; Sawyer, Judge.

Proceedings to probate the will of Thomas H. Daniels, deceased, brought by Horace F. Tilton, executor. The will was allowed, and Walter H. Daniels excepts. Transferred from superior court. Appeal dismissed.

Probate appeal from the allowance of the will of Thomas H. Daniels. The document was signed:

"Thomas H. Daniels.

"Witnesses:

"Wilmer C. Cox.

"Amos Blake.

"Signed before me.

"John R. Connor, Just. of Peace."

Connor testified that he wrote the will; that after Daniels, Cox, and Blake had signed Daniels requested him to administer an oath to the correctness of the signatures; that thereafter they all acknowledged their signatures; that he swore them to the fact and appended the above certificate to the will; that he understood he was asked to sign simply as a justice of the peace; and that he was not asked to sign and did not undertake to sign as a witness. The only ground claimed for a disallowance of the will was a lack of three witnesses.

Upon the appellant's stipulation that his appeal should he dismissed if the ruling was held to be erroneous, his motion for a directed verdict was granted, subject to exception.

Kenson E. Dearborn, Alvin F. Wentworth and Walter M. Flint, all of Plymouth, for plaintiff.

Thomas F. Clifford, of Franklin, for defendant.

PEASLEE, J. The contestant bases his claim to have the will disallowed upon the proposition that Connor did not sign as a witness. No other objection is suggested, and, unless this is well taken, the exception to the ruling directing a verdict for him must be sustained.

In order that a will be duly authenticated, two things are required. It must be both "attested and subscribed." P. S. c. 186, § 2. Attestation "consists in the witnesses seeing that those things exist and are done which the statute requires." Nunn v. Ehlart, 218 Mass. 475, 106 N. E. 165, L. R. A. 1915B, 87. "Attestation is the act of the senses; subscription is the act of the hand; the one is mental; the other mechanical." Swift v. Wiley, 1 B. Mon. (Ky.) 114, 117. To attest the signature means to take note mentally that the signature exists as a fact. If this is done and the attestor also subscribes his name, the statute is complied with. The essential thing is that "by the signature he meant to affirm that the deceased executed the will in his presence." Griffiths v. Griffiths, L. R. 2 P. & D. 300, 304. In this case Connor was requested to and did take note of the signature. At the testator's request, he was sworn by Connor to the truth of the asserted verity of the signature, and Connor certified that fact upon the will.

"The only object the testator could have had in acknowledging his signature, declaring his will, and asking a certificate was to get Beam as a witness to these facts. They may have ascribed to the certificate of a justice an evidentiary force and dignity not accorded it by the law, but this mistake cannot impair the force which the law accords to attesting signatures, without regard to the station of the signer. The testator, in asking for Beam's certificate, sought to make him a witness to the facts he had acknowledged and declared, and perhaps believed that the official form of attestation would impart such indisputable verity as would dispense with further testimony from the witness. While this effect cannot be accorded to it, we can see no reason, in law or justice, why the effect of an ordinary attestation should be denied to it. Whether testifying through his certificate or as a witness in a probate proceeding, Beam was asked to bear witness to the fact that the writing had been subscribed by and was the will of, the testator. That is the ordinary office of a witness, and as such Beam signed the will." Payne v. Payne, 54 Ark. 415, 16 S. W. 1.

The authorities are uniform....