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It is a debatable question, incapable on the paper by the pen without ink. of exact solution, whether the testa- Re Jakob (1888) 21 W. N. C. (Pa.) tor intended to adopt this seal with 510. this inscription as his signature, For a discussion of the civil law or whether he intended it as a seal on the question of signing by initials, only, and neglected to sign his name. see Bradford's Succession (1909) 124 The disposition which the testator La. 44, 49 So. 972, 18 Ann. Cas. 766. has attempted to make of his property is such a natural one, and the
V. Signature by wrong name.
Where a proofs are so clear that he intended
woman, who had been ihis document as a testamentary dis
married a second time, signed a will position of his property, that I feel
by the name of her first husband, it that the
was held that the will was valid. In surrogate should not be astute to search for reasons for re
Glover's Goods (1847) 11 Jur. (Eng.) jecting this will, but, on the other
1022, 5 Notes of Cases, 553. In the hand, should strive to sustain it,
case of Redding's Goods (1850) 14 especially where the interested par
Jur. 1052, 2 Rob. Eccl. Rep. 339, 163 ties, all being of full age, raise no
Eng. Reprint, 1338, it appeared that objections. I therefore hold that the the testator requested a friend to testator adopted this seal and his
draw up her will, which he did, indorsement upon it as a signature.”
describing her as "C. Higgins," and Under an English statute (Wills
that the will was duly executed. Some Act, § 21) providing that interlinea- years later the testator, having, withtions or alterations made in a will are
out any assigned reason, changed her not valid unless executed in the same
name to Redding, requested the permanner as is required for the execu
son who drew the will to change it, tion of a will, and that a will with
so far as regarded her name. The alterations as a part thereof will be
name "Higgins" was changed to "Reddeemed to be duly executed if the
ding" in the body of the will, and the signature of the testator and the sub
attestation clause and the signature scription of the witnesses are made
were erased with a knife in the presin the margin, it has been held that
ence of the testator and the subwhere two interlineations were intro
scribed witnesses, after which the duced into a will after execution and
testator signed the will “C. Redding," attestation, and the testatrix signed
but the witnesses, though present, did with her initials in the margin against
not again sign. It was held that the the interlineations, and the witnesses
facts showed that there was no insubscribed their initials in attesta
tention of revoking the will, and that, tion of this signature of the testator,
as the second signature had not been the signature and subscription by
attested, probate must pass on the initials only were sufficient. Blewitt's
will as originally executed. Goods (1880) L. R. 5 Prob. Div.
In a case wherein it appeared that (Eng.) 116, 49 L. J. Prob. N. S. 31, a will was in proper form as a nun42 L. T. N. S. 329, 28 Week. Rep. 520, cupative testament by public act, it 44 J. P. 768.
was held that the tes tor's signature A will has been admitted to probate by an assumed name was a sufficient where it was signed so that the ini- descriptio personæ, he having astials of the Christian name and sur- sumed the name by which he signed name were plainly written in ink, the will for political reasons, and be and the remaining letters of the full ing generally known in the city in name could be seen somewhat indis- which he resided by that name. Balot tinctly impressed on the paper by the y Ripoll v. Moriña (1846) 12 Rob. pen, without any ink marks whatever. (La.) 552, 14 Prob. Rep. Ann. 402, Upon examining with a magnifying note. glass, the full name could be distinct- Using a wrong name where the ly seen, the initials being in ink and signature is by mark is considered the remaining letters being impressed under II., supra.
In the construction of the wili of sealing is not signing. . Smith v. a testator of German nationality, who Evans (1751) 1 Wils. 313, 95 Eng. had changed his name when he came Reprint, 636; Ellis v. Smith (1754) to America, it was urged that a devise 1 Ves. Jr. 11, 30 Eng. Reprint, 205; in remainder to “the lawful heirs of Wright v. Wakeford (1811) 17 Ves. Charles F. Tyler in the United States Jr. 454, 34 Eng. Reprint, 176. In of America, or the lawful heirs of Smith v. Evans (Eng.) supra, the Carl F. Theilig, formerly of Noulitz, court, in speaking of the case of Saxon Altenburg," being in the alter- Lemayne v. Stanley (Eng.) supra, native, was void. Tyler v. Theilig which held that sealing was signing, (1905) 124 Ga. 204, 52 S. E. 606. In said: “That ‘putting a seal to a will holding that these names
is a sufficient signing within the tended for the same person and used Statute of Frauds and Perjuries' is for purposes of identification mere- very strange doctrine; for that, if it ly, the court held the devise in re- was so, it would be very easy for mainder to be good, and added that one person to forge any man's will, this idea was further borne out by by only forging the names of any the fact that the testator signed the two obscure persons dead, for he will by using both names. It does would have no occasion to forge the not appear in the body of the opinion .testator's hand. And the barons said, that any question was raised with if the same thing should come in respect to the signature as rendering question again, they should not hold the will invalid, but in the syllabus, that sealing a will, only, was a sufwhich was prepared by the court, ficient signing within the statute." it is stated that a signature by using It has been held that the impress both names does not render a devise of his notarial seal by a testator who in remainder void.
was a notary public was a sufficient
signature to his will. Re Wilson VI. Signature by stamp.
(1914) N. S. —, 19 D. L. R. 698. Where the signature was made by
And see the case of Re Severance means of a rubber stamp used by an
(1916) 96 Misc. 384, 161 N. Y. Supp. other at the direction of the testator,
452, cited supra, IV. it was held to be a good signature under a statute which allowed a will
VIII. Misspelled signature. to be signed by another person in the The holding in Bradford's Succespresence and by direction of the tes
sion (1909) 124 La. 44, 49 So. 972, 18 tator. Jenkins v. Gaisford (1863) Ann. Cas. 766, to the effect that a will 9 Jur. N. S. 630, 3 Swabey & T. 93, is valid, although the name of the 164 Eng. Reprint, 1208, 32 L. J. Prob.
testator is misspelled, where it is plain N. S. 122, 8 L. T. N. S. 517, 11 Week.
that the name written was intended Rep. 854. See Jenkyns's Goods (1863)
for the testator's name, is in accord 9 Jur. N. S. (Eng.) 311, 32 L. J. Prob.
with Word v. Whipps (1894) 16 N. S. 71, 11 Week. Rep. 501.
Ky. L. Rep. 403, 28 S. W. 151. The VII. Sealing as signing.
contention in that case was that the In some of the early English cases name of the testator was not subit was held that a sealing was a suf- scribed to his will as the statute reficient signing, under a statute requir- quired, for the reason that, when he ing a will to be signed by the testa- attempted to sign his name thereto, tor. Lemayne v. Stanley (1681) 3 he wrote “A. J. Whpps," instead of Lev. 1, 83 Eng. Reprint, 545; Warne
"A. J. Whipps." The court said: ford v. Warneford (1727) 2 Strange,
“There is no intimation of fraud, or 764, 93 Eng. Reprint, 834; Lee v. any circumstance attending the execuLibb (1688) 1 Shower, K. B. 69, 89 tion of the paper casting a suspicion Eng. Reprint, 454. See Emerson's on the transaction. It is manifest Goods (1882) Ir. Rep. 9 C. L. 443. that the omission of the letter 'l' was But this rule has been changed by merely an oversight, and we do not later English cases, which hold that think that, because there is some dif
ficulty in pronouncing the name as written, the due execution of the paper is in any wise affected.”
In a case wherein it appeared that the testator omitted the "n" in his signature in writing his first name, “Emanuel,” on one of the sheets of the will, it was held that this fact in no wise affected the validity of the will, for there was no contention, even, that he did not intend to, and that he did not, sign the will, but the whole testimony on that point showed that he did intend to, and did, sign it. Boone v. Boone (1914) 114 Ark. 69, 169 S. W. 779.
"Ant nanie” was held to be a sufficient signature to an instrument to entitle it to probate as the will of Aunt Nannie Rodgers, in Wells v. Lewis (1921) 190 Ky. 626, 228 S. W. 3.
the decedent himself, did not serve for a sufficient signature, as it was evident that his relinquishing the pen before he had completed the task he had undertaken was due to physical weakness, and not to a purpose on his part to treat, and to have the witnesses treat, the fragmentary signature already written as the authentication of the will. X. Signature as "Father," "Mother," or
the like. In the case of Ex parte Walker, 15 Quebec Pr. Rep. 15, it was held that a holographic will, which was signed "Mother," and which will, and the signature thereto, were alleged in the petition for probate to be in the true and actual handwriting of the decedent, was valid and should be admitted to probate.
In the reported case (RE KIMMEL, ante, 678) the word “Father" signed to a letter, testamentary in character, being intended as a completed signature, is held to answer all the purposes of the Wills Act, the writer's intent to execute being apparent.
The signature “Ant nanie” was held to be sufficient to authorize the probate of a will, in the case of Wells v. Lewis (1921) 190 Ky. 626, 228 S. W. 3. It does not appear that the testatrix was the aunt of the person addressed in the instrument.
IX. Unfinished signature. Where a testator attempts to sign his will and stops before completing the signature, the execution is insufficient unless he intends the incomplete writing to be his signature. Thus, where a testator started to write his riame, but after making one stroke of the pen laid it down saying, "I can't sign it now," it was held that there was not a sufficient signature, as the intent to have the mark considered as a signature was lacking, it being conclusively shown by the testator's words that he did not consider that he had signed, and that he intentionally postponed doing so until a future occasion. Plate's Estate (1892) 148 Pa. 55, 33 Am. St. Rep. 805, 23 Atl. 1038, reversing (1891) 9 Pa, Co. Ct. 644.
In Knapp v. Reilly (1885) 3 Dem. (N. Y.) 427, it appeared that the testator, Patrick J. O'Neill, started to sign his name to the will, but when he had finished the letter "t" in his first name the pen dropped from his hand, and he said that he could not go any further.
Another person present then proceeded to make the cross mark and to finish the signature, but without any direction from the testator. It was held that the portion of the word “Patrick," as written by
XI. Signature made with another's as
sistance. A signature made by the hand of an illiterate testator incapable of making his own signature, while guided by another at the testator's request, is the testator's signature, where he desires and intends to execute the will. Watson v. Pipes (1856) 32 Miss. 466, approved in Sheehan v, Kearney (1903) 82 Miss. 688, 35 L.R.A. 102, 21 So. 41. It is stated that a signature made in this manner is good, whether the incapacity to write arises from ignorance, or is caused by accident or disease.
In accordance with the foregoing statement, it is held in the following cases that the fact that a testator is so assisted in making his signature because of physical weakness makes it
none the less his individual, conscious, being assisted by another was susand voluntary act:
tained in Re Van Houten (1895) 15 Alabama. Goldsmith v. Gates Misc. 196, 37 N. Y. Supp. 39, but there (1921) 205 Ala. 632, 88 So. 861 (testa- seems to have been no contest over tor, eighty-five and almost blind, the signature by the testator, the obrested hand on back of son's hand, jection being on another ground. who actually signed testator's name In the case of Re Larson (Minn.) with his consent).
supra, the court upheld the probate Arkansas. Vines v. Clingfost of a will signed by the testatrix with (1860) 21 Ark. 309 (with testator's assistance only to the extent that her consent).
sleeve was held when she started to Kansas. See Ahnert v. Ahnert
write. (1916) 98 Kan. 768, 160 Pac. 201.
In the case of Re Gordon (Nev.) Minnesota. Re Allen (1878) 25 supra, the court, after approving the Minn. 39 (no request appears); Re foregoing rule, said: "In order for Larson (1919) 141 Minn. 373, 170 N. this rule to apply, it must appear that W. 348.
the testator, at the time of requesting Montana. Re Miller (1908) 37 or receiving the aid in the signing Mont. 545, 97 Pac. 935 (testator re- of the instrument, had the present quested assistance).
volition to affix the signature, and was Nevada. Re Gordon (1916) 40 aware and fully cognizant of the deNev. 300, 161 Pac. 717.
tails of the instrument of will or New Jersey.
Turner testament to which he, by the aid of (1891) 46 N. J. Eq. 515, 22 Atl. 125 the other, was affixing his signa(no request for assistance appears), ture. The fact that the signature of reversed without opinion, as appears
the testator was made in the manner in (1892) 49 N. J. Eq. 343, 25 Atl. indicated by the record here would 963, on the ground that a full and not of itself invalidate that signature. proper hearing had not been given in Hence we must decide-and we do the lower court.
this in the light of a harmonious line New York. Re Knight (1914) 87 of authorities that if the testator, in Misc. 577, 150 N. Y. Supp. 137.
this instance, possessed testamentary Pennsylvania. Vandruff v. Rine- capacity, was acting under no undue hart (1857) 29 Pa. 232; Shotwell's influence, realized the full force and Estate (1892) 11 Pa. Co. Ct. 444 effect of each and every one of the (knowingly accepted aid); Perchment provisions of the will that he was v. Dietrich (1852) 1 Am. L. Reg. 125; signing, then the signature, in the Hopkins's Estate (1923) 277 Pa. 157, manner in which it was made as de120 Atl. 807. See also McClure v. Red- scribed by the trial judge, was a valid man (1919) 263 Pa. 405, 107 Atl. 25. signature.”
Rhode Island. Wood v. Rhode Is- It was held in Fritz v. Turner land Hospital Trust Co. (1905) 27 R. (N. J.) supra, that it is not necessary I. 295, 61 Atl. 757 (no request ap- to reconcile contradictory testimony pears).
on the subject of the testator's ability Texas. Trezevant v. Rains (1892) to write, or to determine precisely how
Tex. 19 S. W. 567 (requested far the one assisting controlled the assistance.
hand of the testator; the important Washington. - Re Adams (1922) question is whether the testator had 120 Wash. 189, 206 Pac. 947 (testa- the purpose to write his name or make tor's arm supported by physician). his mark on the will as his signature
West Virginia. McMechen v. Mc- to it, and whether in fact he did make Mechen (1881) 17 W. Va. 683, 41 Am. such a physical effort to sign as reRep. 682 (stating that no express re
sulted in a mark on the paper, by quest is necessary; th a request may which the paper could be identified. be inferred from circumstances). It was further observed that while the
The signature of a testator while statute, as interpreted by the courts, Tex. ,
requires that the testator himself in the signing of the will, and that he must sign his will, and he cannot di- published it. This statement of the rect or authorize another to sign it law was approved in Re Baumann for him, the legislature could not have (1914) 85 Misc. 656, 148 N. Y. Supp. intended that the testator's signature 1049. must be his unaided act.
It is sometimes stated that where In Re Kearney (1902) 69 App. Div. the hand of the testator is guided by 481, 74 N. Y. Supp. 1045, it was held another, at the testator's request, this that the extent of the aid, so long as amounts to, at least, an express diit is assistance, does not make the rection to the other to sign his name. signature invalid, if the signing is in Watson v. Pipes (1856) 32 Miss. 466; any degree an act of the testator, Trezevant v. Rains (1892) acquiesced in and adopted by him. 19 S. W. 567; Den ex dem. Stevens The question whether the signature is v. Vancleve (1822) 4 Wash. C. C. 262, the act of the testator does not turn Fed. Cas. No. 13,412. on the extent of the aid, but on In Kirby's Estate (1898) 9 Kulp whether the aid was assistance or (Pa.) 345, a witness testified that she control. If, against the wish of the steadied the decedent's hand when the alleged testator at the time, or with- will was signed, but that the decedent out his consciousness as to the pur- did not know what she was doing. It pose, another writes his name with a was said: “She is not a subscribing pen which is merely in physical con- witness, but almost equivalent, as she tact with the hand of the alleged assisted at the signing. A subscribing testator, then the signature is not rec- witness who testifies that the testatrix ognized as made by him. In that was unconscious when the will was
an expert in handwriting, who made stultifies himself, and his testihad compared the signature of the mony is worthless.” On the evidence will with two normal signatures of offered, the signature to the will was the testator, testified that he failed to held to be genuine. see a particle of the testator's hand- In Peden v. Abraham (1912) writing in the signature, and that in B. C. 3 West. Week. Rep. 265, 8 his opinion the testator had no super- D. L. R. 403, there was held to be a intendence, either mental or physical, failure to sign, where, when the tesof the act, although he might have tator's fingers failed to grasp the pen, touched the pen. It was held that this a doctor put his hand over the detestimony should not prevail against cedent's and traced his name, no rethe positive testimony of intelligent quest having been made by the testaand comparatively disinterested wit- tor to that end. The court viewed nesses that not only did the testa- the case, not as one of assistance in tor direct the terms of his will, but signing, but as one signing for anthat it was read over to him, that he other. attempted to sign it unassisted, that As to the effect of assisting a tesonly when he failed did he accept an tator to make his mark, see supra, II. offer of assistance, that he took part
V. JOHN F. DUPONT, Doing Business under the Name and Style of
Dupont's Garage, Plff. in Err.
Michigan Supreme Court - June 4, 1923.
(223 Mich. 343, 193 N. W. 820.)
Work and labor — receiving pay for repairs improperly made — recovery.
1. The demand for and acceptance of pay for repair work by one who