Whelton v. Daly., 3456.

• Decision Date: 25 April 1944
• Docket Number: No. 3456.,3456.
• Citation: 37 A.2d 1
• Parties: WHELTON v. DALY.
• Court: New Hampshire Supreme Court

37 A.2d 1

WHELTON

v.DALY.

No. 3456.

Supreme Court of New Hampshire.

April 4, 1944.

As Modified on Denial of Rehearing April 13, 1944.

Further Rehearing Denied April 25, 1944.

Transferred from Superior Court, Hillsborough County; Connor, Judge.

Proceeding by George B. Whelton, executor, against Michael Maggie Daly, by his attorney and agent, to probate an instrument purporting to be the last will of Delia Maher. From the allowance of the instrument an appeal was taken and the plaintiff moved to dismiss the appeal and also excepted to the admission of certain evidence, to the charge given, to the denials of plaintiff's requests for instructions, and to denial of his motion to set the verdict aside. The case was transferred to the Supreme Court.

Decree for defendant.

Probate appeal, from the allowance in solemn form of an instrument purporting to be the last will of Delia Maher, late of Nashua. The document will be referred to as the will. For convenience the appellee will be called the plaintiff and the appellant will be called the defendant. Trial by jury resulted in a verdict for the defendant. Before trial, the plaintiff moved that the appeal be dismissed on the ground that Robert E. Earley, attorney and agent for the defendant, had no authority to prosecute it. The motion was denied, subject to exception. At the close of the defendant's evidence, and again at the close of all the evidence, the plaintiff moved to dismiss for lack of evidence. The motions were denied subject to exceptions. The plaintiff also excepted to the admission of certain evidence, to the charge as given, to the denial of the plaintiff's requests for instructions, and to the denial of his motion to set the verdict aside.

Frank B. Clancy and Robert J. Doyle, both of Nashua, for plaintiff.

Robert E. Earley and Thomas J. Leonard, both of Nashua (John E. Allen, of Keene, on the brief), for the defendant.

PAGE, Justice.

Prior to the hearing of the appeal on the merits, the plaintiff moved to dismiss on the ground that no valid appeal had been taken. The motion was based on the claim that the appeal bond was insufficient. The bond was satisfactory in form, was in the sum of one hundred dollars, and was conditioned to pay all such costs as should be awarded by the Superior Court against Michael Maggie Daly, who purportedly took the appeal. The bond was signed “Michael Maggie Daly by his Attorney and Agent Robert E. Earley” and by two sureties.

The claim that the bond was insufficient seems to rest solely on the assertion that Mr. Earley had no authority to take the appeal and to execute the bond on behalf of Mr. Daly. Upon the motion to dismiss for this reason, several documents were received in evidence without exception. One was a power of attorney under seal, purportedly signed by Michael Maggie Daly of Lislea, Drumshambo, County Lertrim, Ireland, appointing Robert E. Earley his “agent and attorney” to appear for him and act in his behalf in connection with “any and all matters of whatever kind, nature, and description, relative to, or, in connection with the Estate of my sister, Delia Maher.” It further granted to Robert E. Earley “full power and authority to act in and concerning the premises as fully and effectually as I might do if personally present.” If the instrument was duly authenticated, the attorney had ample power to take the appeal and give the bond.

On its face the instrument bears the signatures of two witnesses and is dated August 14, 1941. Below appears this certificate: “Subscribed and sworn to before me this 14th day of August, 1941. Wm. Boyd. Notary Public Longford Ireland.” Attached is a paper seal upon which have been impressed the words “William Boyd Notary Public Longford.”

It is the position of the plaintiff that this power of attorney could not be found to be authenticated as the act of Michael Maggie Daly in the absence of proof of Daly's handwriting or proof that William Boyd in fact held the office of Notary Public. The seal of a foreign notary public has for over two hundred years been regarded as sufficient to authenticate the protest of commercial paper. Beach v. Workman, 20 N.H. 379, 383, and cases cited. In spite of this, some jurisdictions make a distinction between protests and other instruments.

Nevertheless, the majority view seems to be that the notary's seal will prima facie authenticate any instrument. 7 Wigmore, Evidence, 3d ed., ss. 2161, 2165. Without the aid of statutory provisions permitting such authentication, this has been held as to the certification of oaths. Denmead v. Maack, 2 MacArthur, D.C., 475; Bigelow v. Porto Rico Planters Company, 7 P.R.Fed.Rep. 386; Hayes v. Frey, 54 Wis. 503, 521, 11 N.W. 695. And so of acknowledgments certified by a foreign notary. Nicholson v. Eureka Lumber Company, 160 N.C. 33, 75 S.E. 730, Ann.Cas.1914C, 202; Hicks v. Whiting, 149 Tenn. 411, 258 S.W. 784.

The precise question has never been decided in this jurisdiction. In Southerin v. Mendum, 5 N.H. 420, an office copy of a power of attorney to convey land in New Hampshire, recorded here but purportedly executed before a notary public in Virginia, was held admissible on the ground that the original had been “acknowledged and recorded,” without any other proof of execution of the original. There was no discussion in the opinion of the probatory effect of the notarial seal, though it was argued by counsel that the seal would not have authorized the introduction of the original without proof of the signatures of the principal and the subscribing witnesses. Unless recording gave some virtue to the instrument that it would not otherwise have possessed (and it is difficult to see how the recording of the instrument was any proof of its execution), the decision amounted to a holding that the officially sealed certificate of the foreign notary was evidence of the due execution of the power of attorney.

We can take judicial notice that within the memory of those now living it has not been customary in this jurisdiction to require proof of the signature and authority of a notary public who in a foreign jurisdiction has attested an oath or acknowledgment to an instrument intended to be given effect here. All practitioners here may be taken to know, however, that the contrary is the custom of some states with reference to instruments executed here for effect in such states. It is evident that general professional understanding here has long been (whether or not on the supposed authority of Southerin v. Mendum) that a foreign notarial seal is sufficient prima facie authentication of a document executed elsewhere for use here. Common practice has always made common law. In view of Southerin v. Mendum and of what appears to be long-time professional understanding, and in further view of the desirability of a single harmonious rule with respect to the prima facie effect of a notarial seal, we adopt the view that this power of attorney was on its face authenticated by the notarial seal, though contradictory evidence would have been admissible.

But there is further evidence that Daly delivered the power of attorney as his act. The instrument came to Mr. Earley in an air mail envelope bearing stamps of Ireland and postmarked “Bealanthamor, Co. L'Droma.” The postmark raises the inference that it was genuinely affixed at the place mentioned. 7 Wigmore, Evidence, 3d Ed., § 2152. It would be a reasonable inference that the place mentioned is the “Ballinamore, Co. Leitrim” appearing at the head of the covering letter, also in evidence without exception. This letter is on the stationery of Peter Canning, Solicitor, and is signed “P. Canning.” It is addressed to Robert E. Early. It announces that Mr. Canning acts in Ireland as solicitor for Michael Maggie Daly of...