Opinion
March 22, 1900.
May 18, 1900.
Present: HOLMES, C.J., KNOWLTON, MORTON, BARKER, LORING, JJ.
Witnesses to a will must sign after the testator has signed.
APPEAL, from a decree of the Judge of Probate, allowing an instrument as the will of Mary Caroline Mason and disallowing two later instruments, each of which the witnesses signed first in the presence of the testatrix, she signing immediately afterwards in their presence. Hearing before Barker, J., who reported the case for the determination of the full court.
G.R. Pulsifer, for the appellant.
J.M. Marshall H.W. Brown, for the appellee.
The only question with which we need to deal upon this report is whether an instrument is duly executed as a will under our statutes if the witnesses sign first in the presence of the testator and the testator signs immediately afterwards in their presence, the whole transaction being as completely one as it can be with that order of events. The question has been answered so fully by Mr. Justice Gray in delivering the judgment of this court in Chase v. Kittredge, 11 Allen, 49, 56, 63, 64, that we think discussion unnecessary. "The manifest intention of the statute is that, 1st, the will should be put in writing and signed by the testator; 2d, his will so written be attested by the witnesses; and 3d, the witnesses subscribe in his presence in evidence of their attestation to his written will." It is true that in that case the witness in question signed in the absence of the testator and some time before him. But the Chief Justice does not confine his reasoning to that case, and evidently meant, with the concurrence of his brethren, to establish a general rule in the words which we have quoted. We regard that rule as founded on good sense and the plain meaning of the words of the statute. Many of the cases cited at the present argument are cited in the opinion. Others in accord with it are Jackson v. Jackson, 39 N.Y. 153, 162; Sisters of Charity of St. Vincent de Paul v. Kelly, 67 N.Y. 409, 413; Brooks v. Woodson, 87 Ga. 379. See also Mendell v. Dunbar, 169 Mass. 74, 76. Decree of Probate Court affirmed.