Chase v. Lincoln, ubi supra, this court said | put that (the case of a hidden signature) as an at page 237 of 3 Mass.: "The Legislature, in requiring three subscribing witnesses to a will, did not contemplate the mere formality of signing their names. An idiot might do this. These witnesses are placed round the testator to ascertain and judge of his capacity, and the heir has a right to insist on the testimony of all the three witnesses, to be given to the jury. They must therefore all be produced, if living, and under the power of the court." [1] Taken literally, R. L. c. 135, § 1, requires that the instrument in writing shall be "signed" by the deceased (or by a person in his presence and by his express direction), in the presence of the witnesses. But as matter of construction it was early established that an acknowledgment by the deceased in the presence of the witnesses of a previous signature was equivalent to signing the instrument in their presence. Chief Justice Shaw, in his charge to the jury in Hall V. Hall, 17 Pick. 373, 375 (and quoted in full on this point later on in this opinion), made a statement in substance to that effect. In Dewey v. Dewey, 1 Metc. 349, 352, 35 Am. Dec. 367, Mr. Justice Dewey said: "The term 'attested,' as used in the statute, does not import that it is requisite that the witnesses should see the very act of signing by the testator. The acknowledgment by the testator, that the name signed to the instrument is his, accompanied with a request that the person should attest as a witness, is clearly sufficient." Gray, J., in Chase v. Kittredge, ubi supra, said: "The statute requires that the will shall 'be in writing and signed by the testator,' and shall be 'attested and subscribed, in the presence of the testator, by three or more competent witnesses.' He is not required to write his signature in their presence, but it is his will which they are to attest and subscribe. It must be his will in writing, though he need not declare it to be such. It must therefore be signed by him before it can be attested by the witnesses. He must either sign in their presence, or acknowledge his signature to them, before they can attest it." And the law is settled to the same effect in other jurisdictions. A collection of cases may be found in a note in 38 L. R. A. 164. It may be taken to be settled, therefore, first, that the attestation required by R. L. c. 135, § 1, consists in the witnesses seeing that those things exist and are done which the statute requires must exist or be done to make the written instrument in law the will of the deceased; second, that although the act required by R. L. c. 135, § 1,. is that the will shall be "signed" by the deceased, yet as matter of construction an acknowledgment by the deceased of a previous signature, made in the presence of the attesting witnesses, is equivalent to signing in their presence. [2] With these two propositions established we come to the question presented in the case at bar, namely: Is there an acknowledgment by the deceased of a previous signature where the signature at the time is hidden from the witnesses? Chief Justice Shaw example of an instance where without question there was not an acknowledgment by the deceased of his signature. In his charge to the jury, set forth in Hall v. Hall, 17 Pick. 373, 375, already referred to, he said: "That to maintain the issue on the part of the executor, and to establish the will, it was necessary to prove that the testatrix signed the will in presence of the witnesses, or that she acknowledged the signature as hers in their presence; and that they severally signed it as witnesses in her presence; and that such acknowledgment was a sufficient compliance with the But in the latter case such acknowlstatute. edgment may be shown, either by proof of an express acknowledgment and declaration that the signature to the will is hers, or by such facts as will satisfy the jury, that she intended to make such declaration or recognition of her signature. If a mere reference is made to a paper, especially if produced by another person, and not held in her own custody, or if it is folded up, and there is no pointing to or referring acknowledges such document to be her will, this to the signature, if she publishes, declares and is not such an acknowledgment of the signature as will supersede the necessity of an actual signature in the presence of the witnesses, and will not warrant the jury in finding that it was duly signed in the presence of the witnesses." And the law is settled in accordance with this view in England (Hudson v. Parker, 1 Rob. 14; Blake v. Blake, 7 P. D. 102), in New York (In re Will of Mackay, 110 N. Y. 611, 18 N. E. 433, 1 L. R. A. 491, 6 Am. St. Rep. 409; In re Laudy, 148 N. Y. 403, 42 N. É. 1061), in Minnesota (Tobin v. Haack, 79 Minn. 101, 81 N. W. 758), and in Oregon (Richardson v. Orth, 40 Or. 252, 66 Pac. 925, 69 Pac. 455). An opposite conclusion was reached in Re Dougherty's Estate, 168 Mich. 281, 134 N. W. 24, 38 L. R. A. (N. S.) 161, Ann. Cas. 1913B, 1300. Apart from authority it is manifest that a person does not acknowledge a signature to be his where no signature can be seen. All that he does in such a case is to acknowledge the fact that he has signed. While an acknowledgment of a signature then exhibited to the witnesses is equivalent to signing in their presence, an acknowledgment to the witnesses of the fact that a signature has been made is not the equivalent of signing in their presence. It follows that where the signature is hidden there is not the equivalent of the statutory requirement that the writing shall be "signed" in the presence of the attesting witnesses. It is true that Hudson v. Parker, 1 Rob. 14, and Blake v. Blake, 7 P. D. 102, were decided under St. 1 Vict. c. 26, § 9,3 which in St. 1 Vict. c. 26, 9, is as follows: "And be it further enacted, that no will shall be valid unless it shall be in writing and executed in manner hereinafter mentioned; that is to say, it shall be signed at the foot or end thereof by the testator, or by some other person in his presence and by his direction; and such signature shall be made or acknowledged by the testator in the presence of two such witnesses shall attest and shall subscribe the or more witnesses present at the same time, and will in the presence of the testator, but no form of attestation shall be necessary." terms requires that the signature shall be, ceased, by his acts, if not by his declarations, "made or acknowledged by the testator in sufficiently recognized and acknowledged the the presence of two or more witnesses." But previous signature made by him. In an earit is of no consequence whether the conclu- lier part of his opinion Mr. Justice Dewey sion (that the signature must be made by the had said: testator in the presence of the witnesses or acknowledged by him in their presence) is reached as matter of construction (as in R. L. c. 135, § 1) or as matter of express enactment (as it is under 1 Vict. c. 26, § 9). The conclusion, however reached, being the same, cases in both jurisdictions are equally in point. It is the contention of the proponent that however this question might have been decided if the matter had been res integra, the point is concluded by the case of Dewey v. Dewey, 1 Metc. 349. It will be necessary to examine that case with some particularity. The instrument propounded in that case as the will of the deceased (Timothy Dewey by name) was subscribed by Medad Fowler, Josiah Fowler and Silas Root as witnesses. There was no question as to the sufficiency of the attestation on the part of Silas Root. The question presented in that case was that of the sufficiency of the attestation by Medad and Josiah Fowler. Medad Fowler testified that his name, which was upon the will, "appeared to be his handwriting, but that he had 'no recollection anything about it.'" His son, Josiah Fowler, testified that the deceased asked him and his father to sign a paper which he called his will, "and not to read it." He "thought he did not see * Timothy sign it; but the deponent and his father signed it as witnesses, without reading it. Deponent did not recollect seeing a word of writing on the paper, which he thought, at the time, was not right, or as it should be.'' At the trial, after the testimony of the subscribing witnesses had been given, the case was taken from the jury and by agreement of the parties was left to the determination of the full court. The opinion begins in these words: "The only question raised in this case is whether this will was duly attested," and ends with these: "It seems to us, upon the whole evidence, that the will was duly signed by the testator, and being thus signed, he by his acts, if not by his declarations, sufficiently recognized and acknowledged his own execution of it to authorize the three witnesses to attest and subscribe the same as witnesses thereto, in accordance with the provisions of the statute." There was no suggestion that the signature of the deceased was hidden from Medad and Josiah Fowler when they subscribed the will as witnesses. The case at bar, therefore, is not concluded by the decision made in Dewey v. Dewey. Not only is that true, but there is nothing in the opinion which is decisive of this case. When Mr. Justice Dewey said that the deceased "by his acts, if not by his declarations, sufficiently recognized and acknowledged his own execution of" the will, "The term 'attested,' as used in the statute, does not import that it is requisite that the the testator. The acknowledgment by the teswitnesses should see the very act of signing by tator, that the name signed to the instrument is his, accompanied with a request that the person Stonehouse v. Evelyn, 3 P. W. 254; Grayson v. should attest as a witness, is clearly sufficient. Atkinson, 2 Ves. Sen. 456. So a declaration by a testator, before the witnesses, that the paper is his will, is sufficient to authorize their attestation to it, and to make it a good will." A declaration by the testator that a paper bearing his signature then exhibited to the witnesses is his will is a sufficient acknowledgment of the signature to authorize the attestation of the will. That was the case to which Mr. Justice Dewey's statement was addressed. Whether such a declaration would be sufficient if the signature was hidden from the witnesses was not before the court in Dewey v. Dewey; and what was there said cannot be taken to have been said with reference to such a case. There is one point on which the decision in Dewey v. Dewey, is not clear, and that is the view which the court should be held to have taken with respect to the testimony of Josiah Fowler. Josiah Fowler did not testify that he did not see the signature of the deceased when he and his father signed as subscribing witnesses. What he did testify to was that he "did not recollect seeing a word of writing on the paper." The distinction is plain. As Mr. Justice Dewey said on pages 353 and 354 of 1 Metc.: * * "The question is not whether this witness [he was then speaking of Medad Fowler] now recollects the circumstances of the attestation, and can state it as a matter within his memory. * The real question is, whether the witness did in fact properly attest it [the will]." It is what was done in fact which is to be looked to in determining whether the attestation is good or not. Testimony of a witness given at the time that the instrument is offered for probate that he does not recollect that a certain act was done, is a different thing from testimony that that act was not done. In Dewey v. Dewey the full court were finding the facts as well as ruling upon the law. Whether they intended to find that although Josiah Fowler did not recollect seeing the signature of the deceased his signature was seen by him and his father, Medad Fowler, or whether the full court meant to find that the signature was not in fact seen by either of them, is not clear. Of these two it is not necessary to determine which is to be taken to have been the view of the court in Dewey v. Dewey. Whichever is the true view of that opinion it is not decisive of the question which has to be decided here. The court could have found that Medad and Nothing further was said as to the validity of the attestation. Whether there was or was not a valid attestation of that will does not seem to have been an issue which was tried before the single justice, and it is cer did not recollect that fact when they testi- | Metc. 349, and cases cited; Adams v. Field, 21 fied; or, if they found that Medad and Josi- Vt. 256." ah did not see it, there is authority for the proposition that where the testator exhibits his signature to the witnesses and asks them to subscribe their names as witnesses the attestation is valid because he has in fact acknowledged his signature to those wit-tain, from an examination of the brief prenesses, even though the witnesses did not in fact see it. In such a case he has exhibited his signature to them, and that, coupled with a request that they should sign as witnesses, is an acknowledgment of his signature. In such a case it is not necessary that the signature exhibited to them by the testator should have been seen by the witnesses. That was the ground on which Blake v. Blake, 7 P. D. 102, was decided by the Court of Appeals in 1882. It was there said that it is enough that the signature which was acknowledged could have been seen by the witnesses. That is vital. Whether it was in fact seen by them is not a matter which is decisive. Cases like Ela v. Edwards, 16 Gray, 91, where it is held that a will can be allowed on proof of the authenticity of the signatures of the deceased and of the attesting witnesses when these witnesses are all dead or for any other reason cannot be produced, do not conflict with the conclusion reached by us in the case at bar. These are not cases holding that the ultimate fact to be proved is not a signing by the deceased or the acknowledgment by him of a previous signature then exhibited to the witnesses. They are cases holding how that fact may be proved when the attesting witnesses are dead, or for other reasons cannot testify; and they hold that in such cases the ultimate fact to be proved may be proved by circumstantial evidence aided by the doctrine "omnia rite esse acta præsumuntur." sented by the contestant to the full court, that no question on that point was made here. The only objection to the will made by the contestant in his argument before the full court was to the finding of the single justice that when the deceased wrote her name at the head of the will she intended that to be her signature to the will. No other attack upon the validity of the execution of the will was made before this court. The proponent also has relied upon Gould v. Chicago Theological Seminary, 189 Ill. 282, 59 N. E. 536. That was a case where the attestation was held valid although the previous signature of the deceased was hidden from the subscribing witnesses when the deceased asked them to sign, saying that the paper was his will. But the Illinois act (Ill. Rev. St. c. 148, § 2) does not provide that the testator shall acknowledge a previous signature. The Illinois act provides that the attesting witnesses must declare on oath "that they were present and saw the testator or testatrix sign said will, testament or codicil, in their presence, or acknowledged the same to be his or her act and deed." It was held as matter of construction of that statute that what is to be acknowledged by the deceased is that the paper signed by the subscribing witnesses is his will. It is hard to understand what the attestation of a will consists in if the contention of the proponent is right. The subscription of the witnesses identifies the paper. But the Another case relied upon by the proponent statute in requiring that the will must be is Meads v. Earle, 205 Mass. 553, 91 N. E. "attested" means that something more must 916, 29 L. R. A. (N. S.) 63. That case came be done than the identification of the paper before this court upon a report from which by the subscribing of the witnesses. It canit appeared that the instrument propounded not be that the requirement that the will as her will was written by the deceased (who should be "attested” means that the testator was a school-teacher) without advice. It was shall inform the witnesses that the paper not signed in the usual place between the is his will. The contrary is settled law, at attestation clause and the in testimonium least in this commonwealth. Hogan v. Grosclause, but the single justice found as a fact venor, 10 Metc. 54, 43 Am. Dec. 414; Osthat the deceased, when she wrote her name borne v. Cook, 11 Cush. 532, 59 Am. Dec. 155; at the head of the blank, intended that to Tilden v. Tilden, 13 Gray, 110. If the subbe her signature to the will. It was also scribing witnesses need not know that the found by the single justice that the deceased paper subscribed by them is the will of the "by words and conduct acknowledged and deceased it is hard to understand what is declared the will before the subscribing wit-required by the word “attested" in addition nesses and that the subscribing witnesses to the word "subscribed," if the definition of signed the attestation clause in her presence "attested" given in Chase v. Kittredge and at her request and upon her acknowledgment the other cases cited above is not correct. and declaration that it was her will, although On this point the argument of the proponent neither of them saw her signature." In the has given us no aid. opinion of the court in that case it was said: "The will was therefore properly signed. Lemayne v. Stanley, 3 Lev. 1. And the signature was properly attested. Dewey v. Dewey, 1 It follows that when the testator hides from the subscribing witnesses the signature which is upon the instrument previously signed by him and goes no further than to ask the subscribing witnesses to sign the paper placed before them, even if that request be accompanied by a statement that the paper is his will, there is no acknowledgment by the testator of his signature and so no valid attestation of his signature by the subscribing witnesses. All that is acknowledged by the testator in that case is that the paper is his will. In such a case there is no acknowledgment by the testator that the signature on the paper (if there be a signature upon it) is his signature. We are of opinion that the charge of Chief Justice Shaw in Hall v. Hall, 17 Pick. 373, set forth above, and the decisions made in Hudson v. Parker, 1 Rob. 14, Blake v. Blake, 7 P. D. 102, In re Will of Mackay, 110 N. Y. 611, 18 N. E. 433, 1 L R. A. 491, 6 Am. St. Rep. 409, In re Laudy, 148 N. Y. 403, 42 N. E. 1061, Tobin v. Haack, 79 Minn. 101, 81 N. W. 758, and Richardson v. Orth, 40 Or. 252, 66 Pac. 925, 69 Pac. 455, are correct. It follows that there was no valid attestation of the will of Thomas Nunn in the case at bar. It is undoubtedly the fact that Thomas Nunn thought that he had made his will, and it is a matter of regret, under these circumstances, to have to come to the conclusion that the paper which he signed, thinking that it was his will, is not in law his will. But that regret arises in every case in which a deceased person has failed to comply with those requirements which, as a matter of public policy, the Legislature has thought proper to exact in case a person wishes to dispose of his property by will. The Legislature might have provided (as it has been held that the Legislature of Illinois did provide) that if the paper was signed by the deceased it would be enough if he acknowledged it to be his will in the presence of the persons who signed the paper as witnesses. But that is not the provision which was adopted in R. L. c. 135, § 1, and the earlier acts of which this is the re-enactment. It follows that by the terms of the report the decree of the probate court must be affirmed. It is So ordered. The relation, to the owners in common of land, of a corporation of them, reorganized under Rev. St. 1836, c. 43 (now Rev. Laws, c. 123), providing for incorporation of owners of common lands, and having seisin simply for the mutual benefit of all the tenants in common, being akin to that of trustee to cestui que trust, a purpose by it to disseise and oust the right owners and acquire title by adverse possession cannot be inferred from equivocal acts, 2. TENANCY IN COMMON (§ 55*)-ACTIONS LACHES. and 1710 other inhabitants of Ipswich were Other lists as much even as between tenants in common. [Ed. Note.-For other cases, see Adverse Pos-list of owners was made with the numbers session, Cent. Dig. §§ 315-322; Dec. Dig. 8 of the lots affixed to the names. 61.*] were made in 1713, two lists in 1748-49, and one in 1837, and another by the last "poundIn all lists er" or keeper of the pasture. there are certain rights marked “undrawn." While these undrawn rights are not identical in all the lists, the master has found that there are 11 old and 18 new rights which are undrawn and which are equal to 19.64 rights out of a total of 424.48 when approximately all the rights have been reduced to terms of old rights for convenience of description. A A deed by a corporation of the owners in common of land being not merely voidable, but void at its inception, because not, authorized by vote of two-thirds in number of the right owners, as required by Rev. Laws, c. 123, § 14, the objection of laches cannot be made to a suit by right owners to set aside the deed. [Ed. Note.-For other cases, see Tenancy in Common, Cent. Dig. §§ 140-156; Dec. Dig. § 55.*] Case Reserved from Supreme Judicial pivotal question is the present ownership of Court, Essex County. Two suits, one by the Inhabitants of Ipswich, the other by one Hobbs, both against the Proprietors of Jeffries Neck Pasture and others. Reserved for the full court. Decree for plaintiffs. Geo. H. W. Hayes, of Ipswich, and Horace I. Bartlett, of Newburyport, for plaintiffs. Chas. A. Sayward, of Ipswich, for defendants. RUGG, C. J. These are bills in equity whereby the plaintiffs seek to set aside a deed made by the defendant Proprietors to the defendant Clark. The Proprietors of Jeffries Neck Pasture (hereafter called the Proprietors) is a corporation existing at least since about 1713 and formally incorporated or reorganized in 1837 under Rev. St. c. 43, now R. L. c. 123, which provides for the incorporation of owners of common lands. The plaintiffs contend that they are owners of rights in this corporation, and that the deed in question is void on the ground that its execution and delivery were not authorized by a vote of two-thirds in number of the right owners as required by R. L. c. 123, § 14. these undrawn rights. The master has found that it is in the town of Ipswich through a conveyance made to it by the Commoners in 1788. The defendant corporation claims title by adverse possession. [1] The salient facts upon which rest the decision of this question are these: It does not appear that either the town or its predecessor, the Commoners, actually enjoyed pasturage by virtue of undrawn rights. In 1723 the Commoners pleaded in an action brought by Samuel Tilton that they had no rights in common land left undisposed of. The facts show that this plea was not true and the defendants are not in a position to claim an estoppel by reason of the plea. Assuming that their votes to that end were effective, the Commoners granted two undrawn rights to two different persons in 1722 and two other such rights in 1770, the Proprietors two in 1767 and another later after conference with the Commoners' clerk to ascertain whether the grantee was entitled thereto. There was discussion from time to time touching the rights of Commoners and later of the town in the undrawn rights. The Proprietors paid obligations to its clerk and employés in pasturage, but it never was expressed to be in respect of undrawn rights and there was no relation between the value of the undrawn rights and the pasturage given for the service or debt. The determination of the controversy upon these points involves an examination of the history of the defendant corporation. Jeffries Neck Pasture is an outlying hill in the town of Ipswich containing about 400 acres and used for many years as a pasture. Prior Commoners, as that word generally is used to 1710 it belonged to the Commoners of Ipswich who owned other lands. Between 1707 in the real estate law of the colonial and For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 106 N.E.-11 |