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most certain method is for the testator to sign his name in full with his own hand, but this is not indispensable, and the testator may sign, where he does so animo testandi, by making his mark; by writing his initials; by writing his first or Christian name only; by using a stamp, or by touching the pen which is guided by another person.* Testator may also use an assumed name, if not done with intent to deceive.† And his signature may of course be written with ink or with a pencil.‡

All of the cases just mentioned are held to be a signing by the testator, but he may also sign by authorizing some one else to write his name for him in the manner prescribed by the statute. Where the language of the statute is that the will must be signed "by testator," unless the statute also provides for conditions in which the testator may authorize another to sign his name this can

*In re Guilfoyle's Will, 96 Cal. 598; Thompson v. Thompson, 49 Neb. 157; Jenkins' Will, 43 Wis. 610; Plate's Est., 148 Pa. St. 65, 35 L. R. A. 102; Rook v. Wilson, 142 Ind. 24; in these cases the signature of testator was by mark. Goods of Emerson, 9 L. R. Ir. 448, upholds a signature by the stamped initials of the testator; Knox's App., 131 Pa. St. 230, holds valid a signature of testator where his Christian name alone was signed. In Wilson v. Beddard, 12 Sim. 28; Sheehan v. Kearney, 35 L. R. A. 102, a signature by testator whose hand is being guided by another was held to be a valid signing by the testator. But in Dunlop v. Dunlop, 10 Watts 153, it was held where the mark was made by a person guiding the hand of testator who was unconscious, that this was not a valid signing by testator. †Word v. Whipps, 28 S. W. Rep. 151.

Knox's Est., 131 Pa. St. 220.

not be done.* The Statutes giving the power to delegate this authority must be consulted and followed in each case. As a rule, they are uniform in requiring, (a) that the signing by the authorized person must be done in the presence of the testator, (b) that such person must be expressly requested by the testator to sign for him.t

By the presence of the testator is meant the conscious presence as well as physical presence, and the term includes the same requisites as when used in reference to subscribing witnesses. By express direction of testator is meant either that the testator in so many words directs the party to sign his name to the instrument, or by acquiescence and assent to another's suggestion, or by signs, motions, gestures and conduct he directs the party to sign for him so as to satisfy the requirement, "by the express direction of testator."

*Page on Wills, Sec. 174, citing In re McElwaine, 18 N. J. Eq. 499. The Ohio Statute upon this subject is: "Every last will and testament (except nuncupative wills hereinafter provided for) shall be in writing, and may be handwritten or typewritten, and such will shall be signed at the end thereof by the party making the same, or by some other person in his presence and by his express direction, and shall be attested and subscribed in the presence of such party, by two or more competent witnesses, who saw the testator subscribe, or heard him acknowledge the same." (Rev. Stat. of Ohio, Sec. 5916.)

†Haynes v. Haynes, 33 O. S. 598, 31 Am. Rep. 579; 111 Pa. St. 220, 17 Am. St. Rep. 798.

‡Mulin's Est., 110 Cal. 252; Waite v. Frisbie, 48 Minn. 420; Haynes v. Haynes, 33 O. S. 598. A mere failure to object to

Sec. 965. THE WRITTEN INSTRUMENT.-No particular language or form is necessary to constitute a writing a will provided the intention of the testator is manifest to thereby dispose of his property at his death, and that the instrument be executed with the statutory formalities. This intention of the testator which must be present in order that a writing may be construed to be a will is called the animus testandi, or intention of making a testamentary disposition.

SAME SUBJECT-THE FORM OF

Concerning the presence of this testamentary intention, Professor Page in his work says: "It does not necessarily mean that the word 'will' or 'testament' must be used in the transaction. A man may make his will animo testandi, though he is so ignorant of law that he thinks it is called a deed or contract, or though he does not know what to call it. The test is not what he thinks is the legal name of the instrument which he is executing, but what the law calls it, in view of its nature, and of the real intention of the maker as deduced from the instrument and from all the facts and circumstances."*

Thus if intended to be testamentary in its character, a written instrument will operate as a will, though it is in the form of a deed, a letter, a contract, an order, or an assignment. Likewise where the animus testandi is not

*Wills, Sec. 44, citing Knight v. Tripp, 49 Pac. Rep. 888; Stumpenhausen's Est., 108 Ia. 555; Smith v. Holden, 58 Kan. 535, and others.

Sharp v. Hall, 86 Ala. 110; 11 Am. St. Rep. 28; Wuesthoff v. The Germania Life Ins. Co., 107 N. Y. 580; Robinson v.

to be found in the written instrument it will be held not to be a will though the word "will" is used in the writing, as where the testator bestows real property upon his heirs in his life time in consideration of a contract for support, such an arrangement though called a will and executed as a will is not a will in law.*

"The rule is that no set form of expression is required. All that is necessary to make an instrument testamentary is that it should show, when read in connection with surrounding facts and circumstances, the testamentary intention." (Page on Wills, Sec. 58.) So an instrument may be partly a will and partly a deed, or some other instrument. And in fact a valid will may be disguised in the form of any instrument, but where statutory formalities are required, these must be satisfied or Brewster, 140 Ill. 649; Mosser v. Mosser, 32 Ala. 551; Leaver v. Ganss, 62 Ia. 314; these cases hold that a writing in form of a deed may yet be held a will where such was the evident intention of the testator, and the title was not to vest until after the death of the testator. In Cowley v. Knapp, 42 N. J. L. 297, a letter was held to be a will. Coop v. Coop, in note to Thorald v. Thorald, I. Ecc. Rep. 15; Swann v. Housman, 90 Va. 816; Longer's Est., 108 Ia. 34, are examples of writings in form of contracts that were held to be wills. Comer v. Comer, 120 Ill. 420; Grand Fountain of U. C., etc., v. Wilson, 96 Va. 594; Remington v. Bank, 76 Mo. 546, are examples of orders to take effect after death of the writer, being held valid as wills. An endorsement on a promissory note in these words, "If I am not living at the time this note is paid I order the contents to be paid to A," was held a valid testament, Hunt v. Hunt, 4 N. H. 434.

*Ward v. Ward, 2 Ky. L. R. 986, 48 S. W. 411; Swann v. Housman, 90 Va. 816.

Sec. 970. SAME

SUBJECT-WHO MAY SIGN FOR TESTATOR, AND HOW.-As a rule, in the absence of statutory restrictions, anyone may sign a will by express direction of testator, including subscribing witnesses and beneficiaries under the will.* The proper form of such signature should be the full name of the testator, and then the statement that it was written by the subscriber, giving his name, in the presence of the testator and at his express request. But this form is not absolutely necessary unless the particular statute requires it. And where the statute is silent on the question, it is held that the mere signing of testator's name is sufficient. So the subscriber may write his own name first and then state that it is done for the testator, naming him.‡

Sec. 971. SAME SUBJECT-WHERE THE SIGNATURE SHOULD BE UPON THE WILL.-One signature is sufficient for a will composed of several sheets, or of several documents, connected either actually or by reference. And the signature may be on a separate paper, if attached to the will.§ A mere

someone signing his name to a will without any words or gestures of assent is not sufficient. (Waite v. Frisbie, supra.) *Riley v. Riley, 36 Ala. 496; McGee v. Porter, 14 Mo. 611; Toomes' Est., 54 Cal. 309.

+In re Cornelius' Will, 14 Ark. 675; Simpson v. Simpson, 27 Mo. 288.

Haynes v. Haynes, 33 O. S. 598; Vernon v. Kirk, 30 Pa. St. 218.

Morrison v. Turnour, 18 Ves. 175; Armstrong's Exr. v. Armstrong, 29 Ala. 538; Booth's Will, 127 N. Y. 109; Adams v. Field, 21 Vt. 256.

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