Wade. v. Wade., (No. 8638)

• Citation: 119 W.Va. 596
• Decision Date: 15 February 1938
• Docket Number: (No. 8638)
• Court: Supreme Court of West Virginia
• Parties: M. P. Wade et al. v. Sarah Alice Wade et al.

119 W.Va. 596

M. P. Wade et al.

v.Sarah Alice Wade et al.

(No. 8638)

Supreme Court of Appeals of West Virginia.

Submitted January 19, 1938.

Decided February 15, 1938.

1. Wills

Where a testator acknowledges a will and his signature thereto in the presence of two competent witnesses, one of whom then subscribes his name, the other or first witness, having already subscribed the will in the presence of the testator but out of the presence of the second witness, may acknowledge his signature in the presence of the testator and the second witness, and such acknowledgment, if there be no indicia of fraud or misunderstanding in the proceeding, will be deemed a signing by the first witness within the requirement of Code, 41-1-3, that the witnesses must subscribe their names in the presence of the testator and of each other.

2. Wills

Whether witnesses to a will have subscribed the same in the presence of the testator and of each other, as required by statute, is a question of fact to be determined in each case from the circumstances thereof.

Kenna, Judge, absent.

Error to Circuit Court, Greenbrier County.

Proceeding by M. P. Wade and others against Sarah Alice Wade and others involving the probate of a will. To review an order refusing probate of the will, defendants bring error.

Reversed and remanded.

Mahan, Bacon & White, for plaintiffs in error.

Thomas L. Read, for defendants in error.

Maxwell, President:

This is a writ of error to a circuit court order refusing probate of a will. The matter came to that court on appeal from the county court under Code, 41-5-7 and 8.

The precise question is whether the purported last will of F. D. Wade, deceased, the same not being in his handwriting but signed and acknowledged by him, was properly subscribed by each of the two persons whose names are appended as witnesses.

The statute reads: "No will shall be valid unless it be in writing and signed by the testator, or by some other person in his presence and by his direction, in such manner as to make it manifest that the name; is intended as a signature; and moreover, unless it be wholly in the handwriting of the testator, the signature shall be made or the will acknowledged by him in the presence of at least two competent witnesses, present at the same time; and such witnesses shall subscribe the will in the presence of the testator, and of each other, but no form of attestation shall be necessary." Code, 41-1-3.

The conceded facts are these: On April 22, 1935, G. G. Clendennin, at the request of his neighbor, F. D. Wade, prepared a will for him. At that time, in the presence of each other, the testator appended his name to the instrument and Clendennin signed as witness. The testator retained custody of the paper. About a week or ten days later, Wade and Clendennin went together to the store of their friend, H. M. McLaughlin. In the store, the three men being in each other's immediate presence, Wade produced the will from his pocket and requested McLaughlin to witness it. McLaughlin remarked that he had not seen the testator and Clendennin affix their signatures. Whereupon, Wade, raising his right hand as though taking an oath, acknowledged the will, identified his signature, and stated that Clendennin's signature had been made on the will in the testator's presence; and Clendennin, with like formality, identified and acknowledged his signature which he had appended to the instrument on the day the testator signed it. Following these acknowledgments, McLaughlin, in the presence of the testator and Clendennin, wrote his name as a witness.

Wade's acknowledgment of the will and McLaughlin's attestation as a witness were patently within the precise terms of the statutory requirements.

The inquiry therefore narrows to whether Clendennin signed the will in the presence of the testator and the other witness, as required by statute. Was Clendennin's acknowledgment of his signature in the presence of the testator and McLaughlin tantamount to his actually writing his name at the instant?

From the formation of this state in 1863, to the legislative session of 1882, our statute, inherited from the State of Virginia, did not require that the witnesses to a will subscribe the same in the presence of each other. The additional exaction was imposed to tighten the formality and lessen the opportunities for fraud and imposition. So far as the amendment of the statute had for its purpose the bringing together of the testator and the two witnesses at the same time, there manifestly has been full compliance in the case at bar.

Though the Virginia statute does not,...