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on exceptions taken by the appellants in the "I don't want my will to go out looking that course of that trial.

way, Joe." "Now," he said, "I am going to sign it there [indicating the place between the in testimonium and the attestation clauses] too." And thereupon Mr. Cavanagh said that he did not think that had better be done unless the witnesses were recalled, although it was not necessary since he had signed the will already, and thereupon a discussion ensued, Mr. Cavanagh urging Mr. Pratt to have a clean copy made and execute the will anew later on. This Mr. Pratt refused to do, say

The facts which appeared in evidence attending the execution of the will were, in substance, as follows: The instrument in question had been drafted at Mr. Pratt's request by Joseph Cavanagh, Esq., a member of the bar, and a preliminary copy had been sent by Mr. Cavanagh to Mr. Pratt for his consideration. Mr. Pratt was, at that time, living at the Beaconsfield Hotel, Mr. Cavanagh, on the day in question, had called upon Mr. Pratt for another purpose. While Mr.ing that he wished to finish the matter that Cavanagh was there, Mr. Pratt said that he would like to execute the will then, and, after it had been read in part by him and in part had been read to him by Mr. Cavanagh, a nurse who was in attendance upon him and two officers of the hotel were called in to act as attesting witnesses. Mr. Cavanagh was not present at the execution of the will, thinking that because he was named as executor it would be improper for him to be present at that time.

There was evidence that, immediately before the attesting witnesses were called in, Mr. Cavanagh had suggested to Mr. Pratt that he had "better sign before they come, on the margin of the pages, up to the last page"; that Mr. Pratt proceeded to do that and had just finished or was finishing his signature on the fourth page when Mr. Cavanagh left the room, on the attesting witnesses coming in. When the attesting witnesses were present, Mr. Pratt started to write his name between the in testimonium and the attestation clauses. But Miss Burrows, the nurse, stopped him. There was conflict in the evidence as to what was then said by her.

Thereupon he did write his name on the margin of the fifth page and the attestation clause was subscribed by the witnesses.

After this had taken place, Mr. Cavanagh returned to the room. There was evidence that Mr. Cavanagh then said to Mr. Pratt, "You have not signed the will at the foot of the will;" and thereupon Mr. Pratt said that Miss Burrows had told him that he (Cavanagh) had left directions that he was to sign in the margin, and that he did so because of those directions. Mr. Cavanagh said it was a mistake, and Mr. Pratt said, "Joe, this looks sloppy, don't it?" to which he answered, "What do you mean?" and Mr. Pratt said, "To have my will go out to be seen by my friends in the probate court signed up here on the margin," and thereupon Mr. Pratt pulled the will toward him and took up a pen, or dipped it in the ink, and started to sign the will between the in testimonium and the attestation clauses. Thereupon Mr. Cavanagh stopped him and asked, "What are you going to do?" and Mr. Pratt said, "I am going to put my name down here." To which Mr. Cavanagh said that he did not think he had better do that as long as he had signed

day, and Mr. Cavanagh said that if he insisted upon writing his name in the proper place that he would have the attesting witnesses come back, so that "those witnesses would be able to say how your name got at the bottom, as well as how it got on the side." Mr. Cavanagh then said to Mr. Pratt, "Before I do call the witnesses back, do you tell me that you intend that [pointing to the signature on the margin] as your signature to this will?" to which he said, "Yes," and thereupon the witnesses returned and Mr. Pratt wrote his name between the in testimonium and the attestation clauses, but the attesting witnesses did not again subscribe the will.

There was evidence on which the jury could have found that what was said by Mr. Cavanagh when he returned to the room was, "Charlie, you haven't signed the will," and that the signature thereafter made by him was intended by him as the signature of his will and being after the attesting witnesses had subscribed their names the will was not duly attested, under the decision in Chase v. Kittredge, 11 Allen, 49, 87 Am. Dec. 687.

That is to say, it was open to the jury to find that the signature on the margin of the fifth page was intended by Mr. Pratt as his signature to the will, but it was also open to them to find that the signature which was afterwards put between the in testimonium and the attestation clauses was intended by him as his signature to the will. the attesting witnesses, three other witnesses were called by the executors, and no witnesses were called by the appellants.

Besides

The appellants requested the presiding judge to give nine rulings which are set forth in a note.1

1 "1. On all the evidence in the case the jury should answer the question propounded in the negative.

"2. The burden of proof is upon the proponents of the will to show, by a fair preponderance of the evidence, that all the requirements of law were complied with in respect of the execution of the will; and if the jury are unconvinced or in doubt, they should answer the question submitted, 'No.'

"3. Upon all the evidence in the case the testator did not intend his signature on the margin of any of the pages to be operative as the execution of the will, but that he intended to sign for such purpose, when he did sign, in the presence of the witnesses on their second appearance.

These rulings the judge refused to give in, put in here as to what occurred at the time full. Exceptions were taken by the appel- Mr. Pratt signed this paper on the fifth marlants to this refusal of the judge.

The executors asked for two rulings, which vere, in substance, given by the judge, and an exception was taken to that part of the charge in which the judge, in substance, gave these two rulings. These rulings were as follows:

"5. If the will was validly executed on the margin, there is nothing shown in evidence which happened afterwards which affects that valid execution."

7. You are to assume, for the purposes of this case, that Mr. Pratt was of a sound mind and competent to execute his will."

The material part of the charge to the jury was as follows:

"So you see we have come down now to the very narrow question. On the fifth page in the margin appears the name of Charles H. Pratt. And the question, narrowed down for you to determine, is this: When Charles H. Pratt wrote his name there in the margin of this fifth page did he intend thereby to give this instrument effect as his last will? If he did, then your answer to this question will be 'Yes.' If he did not, your answer will be 'No'; because it is upon that signature, admittedly made on the fifth page, witnessed by these three witnesses, that this whole case turns. Well, now you see that is even narrower than appears, because there is no dispute [but] that he signed his name there; there is no dispute but that the three witnesses attested this instrument after he had signed his name there. So that, really, we get now, I think, about as close and narrow as we can. The question comes down to one of intent. What was the intention on the part of Charles H. Pratt when he signed his name in the margin there of that fifth page and the witnesses attested that signature? Did he intend to place it there in order to have it operate as a signature, final signature, operative signature of his will-as the signature of his will; not for identification, or for any other purpose? If he did, that became his will at that moment, and your answer will be 'Yes.' And the burden is upon the executor to satisfy you by a fair preponderance of the evidence in this case that that was his intention,-when he signed his name on that page, to have that writing operate as a signature to his will, making it his will."

And again:

"You notice that, although this whole transaction occurred in an hour or two, of the afternoon of March 28, not only was the evidence

that when the testator placed his signature on the margin of the fifth page of the will he did so either for the same purpose as that for which he had placed his signature on the margin of the previous pages or because Miss Burrows suggested it, still intending to sign at the bottom of the will in execution thereof, as he subsequently did, the jury should answer the question propounded, 'No.'

5. To answer the question propounded in the affirmative, the jury must find (a) that the testator signed on the margin for a purpose different from that for which he signed on the four preceding pages; (b) that he then intended not to sign at the bottom of the will, but to leave the space there provided for his signature unfilled.

"6. If the jury find that when the testator signed on the margin of the pages which he signed when all the witnesses were present, he intended to sign at the end, in the usual place for a testator's signature, in token of execution of his will, but inadvertently forgot to 106 N.E.-11

gin, but also what occurred afterwards when the witnesses were recalled to the room, and what occurred with reference to writing on the copy of the old will, and the conversation that occurred, and the statements that were made by Mr. Pratt afterwards. These were admitted under what the lawyers call the rule of res gestæ. That is, where the acts that are done are so intimately connected that, although they may not be identical in time, they are so closely connected with the main thing of which we are inquiring as not only to throw light upon the main act, but to be essential in order to practically understand the main act with which they are intimately connected. So we have gone into, not only what took place during those five or ten minutes that the three witnesses were in the room, but also into what took place just before and just after. Why? Not because the issue is what occurred later, not because the issue is as to the signing at the end of the will; but only so far as the transactions that occurred during this entire meeting on the afternoon of March 28 hark back and throw light on the intention of Charles H. Pratt, at the moment when he signed his name in the margin of the fifth page, and had that signature attested by the three witnesses. It is only so far as those statements and those acts that occurred later that afternoon, and before the will was finally taken and put in the safety deposit box and carried away; it is only so far as the transactions of that afternoon bear upon and help you to determine that narrow question of the intention of Mr. Pratt when he signed on the margin of the fifth page that they are of any consequence. So far as they do help you to determine what his intention was back at that time when he made his signature upon which this will stands or falls, and only so far as they help you determine his intention at that time, are they of consequence."

On the conclusion of the charge, when the appellants took an exception to that part of the charge which adopted, in substance, the fifth ruling asked for by the executors, the stenographer, at the request of the judge, read the part to which this exception was taken, and it was in these words:

"For_the_purposes of this case it must appear that Mr. Pratt signed this instrument as his will and that that signature was attested by the three witnesses whose signatures appear on the will in writing. And if that once became an accomplished fact, that became the operative will of Mr. Pratt, and nothing done afterwards, sign, they should answer the proposed question, 'No.'

"7. If the testator intended to sign his will at the end in token of execution, but forgot to do so until the second appearance of all the witnesses, the question propounded should be ar swered, 'No.'

"8. The single question in the case for the jury to determine is whether the testator, when he placed his name on the margin of the fifth page, intended that as his final signature of the will in token of execution thereof, or whether he intended to sign at the end, in the usual place, in the place signified by the will as intended for his signature. If the latter, the question must be answered, 'No.'

"9. If the signature by the testator at the end of the will was intended to be the operative signature to authenticate the will, the jury must find, under the uncontradicted evidence in the case, that the will was not executed according to law.

so far as the testimony in this case shows,, bate executed according to law?" the presidwould nullify it." ing judge explained to the jury that what happened afterwards was of no consequence except so far as it threw light on the intent with which the signature on the fifth page was made. That was a correct statement made with accuracy. To have given the rulings asked for by the contestants would have impaired the accuracy of the statement. and tended to mislead the jury.

[1] At their argument in this court, the appellants have undertaken to support the first ruling asked for by them and refused by the judge on the ground that the instrument offered for probate included the signature of Mr. Pratt between the in testimonium and the attestation clauses, and that on the contention of the executors that signature was no part of Mr. Pratt's will. For, on the contention of the executors, Mr. Pratt's will was executed when he signed his name on the margin of the fifth page and the witnesses subscribed their names under the attestation clause on page six. On this assumption the signature of Mr. Pratt between the in testimonium and the attestation clauses (having been made subsequent to that) was no part of Mr. Pratt's will and

We come now to the exceptions taken to the charge in so far as they adopted the fifth and seventh rulings asked for by the ex

ecutors.

[4] So far as that part of the charge is concerned which in substance adopted the fifth request asked for by the executor it has been disposed of by what has been said already.

The practical effect of the agreement made

by the appellants when the second issue was withdrawn from the jury was what the judge told the jury, namely, that they were to assume for the purposes of this case, that Mr. Pratt was of sound mind and competent

to execute his will.

ceased animo testandi.

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should not have been admitted to probate. It appears from the exceptions that no such contention was made at the trial. If it had been made, the petition of the executors for probate of Mr. Pratt's will could have been amended by leaving out the signature in question. It is manifest that the point is [5-7] In making out the first issue, namemerely technical and that the case has been ly, "Was the alleged will now offered for fairly tried on the merits. Under these circumstances an amendment to that effect may den was on the executor to show inter alia probate executed according to law?" the burnow be allowed. But this trial took place before St. 1913, c. 716, and therefore the that the instrument was signed by the deamendment cannot be allowed by this court. the executor to show that immediately after It was competent for [2] The appellants' second contention is, that an incomplete instrument cannot be al- the execution of the instrument now in queslowed as the will of the deceased, and the tion an indorsement was made on a former argument put forward is that Mr. Pratt will to the effect that it was canceled. An could have signed his will "in a dozen differ-exception was taken to the admission of this ent places" and that if he had intended to sign it in a dozen different places it was an incomplete instrument until the last of the dozen signatures had been put to the will. But this contention is without foundation. The deceased may, for purposes of identification, write his name against each of the sheets. If he does so, those signatures are not the signature of the will which is required by R. L. c. 135, § 1. A testator cannot sign his will more than once. The only question in the case at bar was (as stated by the presiding judge) whether the signature on the margin of the fifth page was put there by Mr. Pratt as his signature to the will. There is nothing in the nineteen cases cited by the appellants in this connection which requires special notice.

[3] The appellants' next contention is: "That the jury should have been instructed to find whether the testator intended to complete the writing and signing of his will by the signature at the end or the signature in the margin, and if the signature at the end, then the will was not executed according to law and the issue should be answered in the negative."

That is what the presiding judge told the jury, with this exception, that in dealing with the issue which was on trial, namely,

evidence, and the appellants now undertake to support that exception on the ground that the testamentary intent was not in dispute. But if the appellants had wished to take that position, they should have had the terms of the first issue amended. The general testamentary intent was in dispute so long as the first issue remained in the form in which it had beeen put. The issue to be tried was the issue raised by the pleadings. Admission of parties to the fact did not deprive the other party to the litigation of the right of proving the fact which was in issue under the pleadings. Priest v. Groton, 103 Mass. 530; Com. v. McCarthy, 119 Mass. 354; Com. V. Costello, 120 Mass. 358; Dorr v. Tremont Nat. Bank, 128 Mass. 349; Dawson v. B. & M., 156 Mass. 127, 30 N. E. 466; Whiteside v. Lowney, 171 Mass. 431, 50 N. E. 931; Conant v. Evans, 202 Mass. 34, 88 N. E. 438.

[8] There was an attempt made by the appellants to show that Miss Burrows' testimony in the probate court was different from that given by her on the stand. For the purpose of showing it was the same, the executors were allowed to put in evidence as to what she stated in the probate court, and an exception was taken by the appellants to the admission of that testimony. We are not

the will was reversed on appeal to a single justice of the Supreme Court, who reported the case to the full court. Reversed, and, decree of the Probate Court affirmed.

executors to show that the testimony given | A decree of the Probate Court disallowing by Miss Burrows in the probate court did not contradict the testimony given by her at the trial, but was, in fact, the same. If within 60 days from date of the rescript the petitioners shall make a motion to amend their petition by striking out from the instrument offered for probate as the last will of Charles H. Pratt the signature between the in testimonium and the attestation clauses, and a motion to that effect is finally allowed, the exceptions in this case will be overruled; otherwise the exceptions will be sustained. It is

So ordered.

(218 Mass. 471)

NUNN v. EHLERT.

(Supreme Judicial Court of Massachusetts. Middlesex. Sept. 11, 1914.)

Frank Owen White and Robert Nason, both of Boston, for appellant. Mayberry, Hallowell & Hammond, of Boston, for appellee.

LORING, J. This appeal from a decree of the probate court comes before us upon a report by a single justice of this court which sets forth all the evidence introduced before him. The single justice found that the testimony of each subscribing witness was "entirely credible and not open to doubt," and made a finding that the instrument was properly executed and that it ought to be admitted to probate as the will of Thomas Nunn. By the terms of the report,

1. WILLS (118*)-EXECUTION-FORM-SIGN- if the finding was wrong the decree of the

ING.

Rev. Laws, c. 135, § 1, providing that a person may, by his last will in writing, signed by him or by a person in his presence and by his express direction, and attested and subscribed in his presence by three or more competent witnesses, dispose of his property, real and personal, does not necessarily require that the will be signed by deceased in the presence of the witnesses, but it is sufficient that he shall have previously signed the document, and shall ac knowledge, in the presence of the witnesses, such previous signature to be his.

probate court (disallowing the will) is to be affirmed. But if his finding is sustained that decree is to be reversed and a decree entered admitting the instrument to probate.

A fac simile of the will is made part of the report. The will was written on ordinary foolscap paper; that is to say, on paper folded at the top and with lines ruled upon it. The whole paper is in the handwriting of the deceased. A copy of the ending

[Ed. Note.-For other cases, see Wills, Cent. of it is set forth in the note.1 The in tesDig. §§ 302-304; Dec. Dig. § 118.*] 2. WILLS (§ 118*) EXECUTION PREVIOUS SIGNING BY TESTATOR CONCEALMENT OF. SIGNATURE FROM WITNESSES TION."

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"ATTESTA

Rev. Laws, c. 135, § 1, provides that every person may, by his last will in writing, signed by him or by a person in his presence and by his express direction, and attested and subscribed in his presence by three or more competent witnesses, dispose of his property, real and personal. Testator wrote an alleged will on foolscap paper, folded at the top; the whole being in his handwriting. On the next line below the attestation clause, and on the right side of that line, were the words, "Signed, Thomas Nunn," and on the three lines next below, and on the left side of those lines, were the names of three witnesses, one under the other, and on the same line with the name of the last witness, and to the right, were the words "Thomas Nunn." Decedent presented the paper to the witnesses and asked them if they would sign his will, but kept it so folded, while they were doing so, that they saw no signature below the fold of the paper. The third witness also testified that he did not remember seeing any signature. Held, that testator at most acknowledged that he had signed the instrument, but did not acknowledge the signature to be his, and hence there was no attestation by the witnesses as required by the statute, and the will was therefore not properly executed.

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 302-304; Dec. Dig. § 118.*

For other definitions, see Words and Phrases, vol. 1, pp. 628-630.]

Report from Superior Court, Middlesex County; Henry K. Braley, Judge.

Petition by Elenor M. Nunn, for the probate of the will of Thomas Nunn, deceased.

timonium clause begins at the foot of the
first page and ends on the second line of the
second page. The attestation clause begins

on the next line and fills five lines and a
part of the sixth line. On the next line be-
low and on the right hand side of that line
occur the words "[Signed] Thomas Nunn."
On the three lines next below that line and
on the left-hand side of those lines are the
names:
shall.

"Mrs. Mary E. Marshall. John MarThomas G. Andrews." On the same line with "Thomas G. Andrews" and on the right hand side of that line are the words "Thomas Nunn."

According to Mrs. Marshall's testimony it appeared that a few days before she and her husband signed the instrument here in question the deceased had asked her if she and her husband would sign his will; that later on he came into their kitchen and took the will out of his pocket; that "it was folded up"; that as he turned it over she

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For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

saw handwriting on it and recognized the writing as the writing of the deceased, but could not "recognize any word"; that they were sitting on opposite sides of a table, and the deceased "reached" the folded paper across to her and she signed; that he held on to the paper while she signed; that it was folded "just so I could sign comfortably," and so that she saw nothing above where she put her name. She saw no signature below the edge made by the folding of the paper. She further testified that she then got up out of the chair in which she sat while signing her name; that her husband sat down and signed his name, and that the deceased held on to the paper folded as above described until both had signed. He then blotted the signatures, put the paper in his pocket and went away. She further testified that when she caught sight of the writing while the paper was being turned over she did not distinguish any words or see any signature. This testimony was corroborated by that of her husband. He was explicit in his testimony that no change was made in the arrangement of the paper while his wife and he signed, and that the deceased did not point to any signature in the will. In his testimony he said, "I don't remember seeing any signature." It should be added that after his death the instrument now presented as the will of the deceased was found in his box in a safety deposit

vault.

This case, therefore, presents the question whether a will is duly attested when the signature of the deceased is hidden from the witnesses when they attest and subscribe the will.

Our statute of wills (in substance a reenactment of the statute of frauds [St. 29, Car. II, c. 3, § 52]) is in these words:

"Every person of full age and sound mind may by his last will in writing, signed by him or by a person in his presence and by his express direction, and attested and subscribed in his presence by three or more competent witnesses, dispose of his property, real and personal" -with some additions not necessary to be stated. R. L. c. 135, § 1.

In Chase v. Kittredge, 11 Allen, 49, 63, 87 Am. Dec. 687, a statement was made of the meaning of the word "attested" in what is now R. L. c. 135, § 1. The decision in Chase v. Kittredge was that a subscribing witness cannot sign before the testator has signed. In making that

St. 29 Car. II, c. 3, § 5, is as follows: "From and after said four and twentieth day of June, all devises and bequests of any lands or tenements devisable either by force of the statute of wills, or by this statute, or by force of the custom of Kent, or the custom of any borough or any other particular custom, shall be in writing and signed by the party so devising the same, or by some other person in his presence by his express directions, and shall be attested and subscribed in the presence of the said devisor by three or four credible witnesses

decision Mr. Justice Gray delivered an exhaustive opinion upon the acts required by statute to make a valid will. In the course of that opinion he said:

"The statute not only requires them [the witnesses] to attest, but to subscribe. It is not sufwitness the testator's signature, or to stand by ficient for the witnesses to be called upon to while he makes or acknowledges it, and be prepared to testify afterwards to his sanity and subscribe. This subscription is the evidence of due execution of the instrument, but they must their previous attestation, and to preserve the proof of that attestation in case of their death or absence when after the testator's death the will shall be presented for probate. It is as difficult to see how they can subscribe in proof of their attestation before they have attested, as it is to see how they can attest before the signature of the testator has made it his written

will."

Chief Justice Robertson gave a similar definition of the word "attest" in Swift v. Wiley, 1 B. Mon. (Ky.) 114, 117. He said:

"To attest the publication of a paper as a last will, and to subscribe to that paper the names of the witnesses, are very different things, and are required for obviously distinct and different ends. Attestation is the act of the senses, submental, the other mechanical, and to attest a scription is the act of the hand; the one is will is to know that it was published as such, and to certify the facts required to constitute an actual and legal publication; but to subwrite on the same paper the names of the witscribe a paper published as a will, is only to nesses, for the sole purpose of identification."

See in this connection Reed v. Watson, 27 Ind. 442, 447; Gerrish v. Nason, 22 Me. 438, 441, 39 Am. Dec. 589; Brooks v. Barrett, 7 Pick. 94, 98.

If, however, the matter were res integra the conclusion reached in the cases cited above would be the conclusion which would have to be reached by a due construction of the statute of wills. R. L. c. 135, § 1. The statute requires that the deceased shall be a person of full age and sound mind, that his will shall be reduced to writing, and that the writing shall be signed by him (or by a person in his presence and by his express direction), and that it shall be "attested and subscribed in his presence by three or more competent witnesses." The subscription of the paper by the witnesses identifies the instrument. What then does the statute mean when it requires in addition that the instrument shall be "attested" by the witnesses? To attest means to bear witness. When the statute requires that the witnesses shall attest, what is it that they are to bear witness to? Plainly to those facts to which they have to testify when put on the stand as attesting witnesses, namely, that those things existed and were done which the statute requires must exist and be done to make the writing a valid will. The rule that the will must be proved by the attesting witnesses, if they can be produced (as to which see Chase v. Lincoln, 3 Mass. 236; O'Connell v. Dow, 182 Mass. 541, 66 N. E.

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