ALBERT H. MEADS & another v. EUGENIA M. EARLE.

Hammond, J. This was an appeal from a decree of the Probate Court disallowing an instrument as the last will of Sarah J. Armstrong. The case was heard by a single justice of this court [Note p554-1] upon an inspection of the will, the agreed facts and the depositions of the three subscribing witnesses. The appellee requested the judge to rule as matter of law that the instrument was not signed by the testatrix and attested and subscribed in her presence by three competent witnesses in accordance with the requirements of R. L. c. 135, § 1. The justice declined so to rule and found as facts "that so far as the will is in manuscript, the handwriting including her name or signature is that of Sarah J. Armstrong; that although she did not sign at the end of the instrument, yet when she wrote her name at the beginning of the will, it was with the intention that this act was a signing of the will; that independently of the attestation clause, she by words and conduct acknowledged and declared the will before the subscribing witnesses and that the subscribing witnesses signed the attestation clause in her presence at her request and upon her acknowledgment and declaration that it was her will, although neither of them saw her signature."

Having so found he ruled that the document was signed, attested and subscribed "within the meaning of the statute," and that it was a valid will. The case is before us upon his report. If the ruling requested by the appellee should have been given, a decree is to be entered affirming the decree of the Probate Court; otherwise a decree is to be entered reversing that decree, admitting the will to probate and remanding the case to that court for further proceedings.

The findings of the single justice are to stand unless plainly wrong. At the time of the execution of the will Miss Armstrong was temporarily stopping at the Manhattan Hotel in New York city, on the eve of a voyage to Italy. It is a reasonable inference from the testimony that the will was drafted just before its execution. She had procured a blank form containing at the beginning the following printed words, to wit: "Be it remembered that I, .... of in the Commonwealth of Massachusetts, being of sound mind and memory, but knowing

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the uncertainty of this life, do make this my last will and testament. After the payment of my just debts and funeral charges, I bequeath and devise as follows:" At the end of the blank was printed the in testimonium clause, blanks being left for the date, and following that clause was the printed attestation clause as follows: "On this . . . day of ... A. D. 19 , .... of Massachusetts, signed the foregoing instrument in our presence, declaring it to be . . . last will; and as witnesses thereof we three do now at . . . request, in . . . presence, and in the presence of each other, hereto subscribe our names." Between the printed words at the beginning of the will and the printed in testimonium words at the end, there was an extended blank space for the body of the will, but the space between the latter clause and the attestation clause was small and there was no line, dotted or otherwise, indicating the place for a signature, while following the attestation clause there were three dotted lines indicating where the subscribing witnesses were to sign.

With this blank before her she begins, apparently unaided, to write her will. She first makes the proper changes in the exordium. She fills the blank space after the word "I" with her name. She writes in the next blank space, "Cincinnati, Ohio," and crosses out the words "in the Commonwealth of Massachusetts." As thus changed the exordium reads: "Be it remembered that I, Sarah J. Armstrong, of Cincinnati, Ohio, being of sound mind," etc. She proceeds to write in the blank space provided for the body of the will. The will deals with her estate in great detail, containing nearly twenty different bequests. She then fills the proper spaces in the in testimonium and attestation clauses, putting her name and residence and the pronouns in the proper places in the latter clause. After the attestation clause and below the dotted lines indicating the places for the signatures of the three witnesses, she writes the clause nominating the executors and requesting that they be required to give no bonds. Every written word is in her handwriting. The will is clearly and intelligently drawn. The evidence of the subscribing witnesses shows that she was a woman of refinement and superior mental endowment. She had been for several years in charge of a young ladies' school; and from the glimpses we get of her it is not difficult to detect her resolute and self-reliant nature. There

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is no indication that she was not in good health. In a day or two she was to take the steamer for Italy.

With this document this intelligent, self-reliant woman came to Miss Hall, the first witness, who describes the interview thus: "I was at the Manhattan Hotel writing home when Miss Armstrong came up to me and asked me if I would sign her will as a witness. She said: 'I would not ask this of you, but Miss Hunter and the Clays cannot because they are mentioned in the will, and it requires three witnesses; the Misses Jaudon have said they would.' She then sat down and wrote something on the paper which I did not read, then handed it to me and I signed my name where she told me to; she was by my side when I signed it."

Subsequently, and apparently upon the same day, the other two witnesses signed. Each of the three witnesses testified in substance that Miss Armstrong stated that the document was her last will and asked her to sign as a witness. In no other way did Miss Armstrong mention her signature or call it to the attention of the witnesses. Shortly afterwards the instrument, thus written and thus attested, was deposited at the request of Miss Armstrong in her safe deposit vault, and there remained until her death.

There can be no doubt that she intended to make and supposed she had made a valid will. The care she took in writing the paper, in seeing to its attestation, and in putting and keeping it in a safe place shows that. She does not appear to have been advised or assisted by any one. She personally superintended the whole work. There was however no signature at the end; and it is contended by the contestants that the single justice was not warranted in finding that she wrote her name at the beginning animo signandi.

The finding must be interpreted to mean not simply that after writing her whole will she adopted as her signature her name as written previously in the exordium, but that at the time she wrote her name there she intended that it should stand as her signature to the will when completed, and that this intent continued to the end. Such a finding is perfectly consistent with what she did, and is not inconsistent with any act of hers. It explains any apparent incongruity in the evidence. It welds all

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the circumstances into one harmonious whole and is supported by the evidence.

The will was therefore properly signed. Lemayne v. Stanley, 3 Lev. 1. And the signature was properly attested. Dewey v. Dewey, 1 Met. 349, and cases cited. Adams v. Field, 21 Vt. 256. The ruling requested by the appellee was properly refused.

In view of this finding as to Miss Armstrong's intent at the time she wrote her name in the exordium, it becomes unnecessary to consider the question whether there is evidence of a subsequent adoption of the name as her signature, even if originally written with no intent to have it finally stand as such.

Upon the question as to the kind of evidence required to prove such adoption, the cases are not in complete harmony. Among the authorities bearing upon this, as well as the general question involved in the case, see in addition to the authorities hereinbefore cited the following: Hall v. Hall, 17 Pick. 373; Hogan v. Grosvenor, 10 Met. 54; Ela v. Edwards, 16 Gray 91; Penniman v. Hartshorn, 13 Mass. 87; Nickerson v. Buck, 12 Cush. 332; Right v. Price, 1 Dougl. 241; Grayson v. Atkinson, 2 Ves. Sr. 454; Griffin v. Griffin, 4 Ves. 197, note; Morison v. Turnour, 18 Ves. 175, 183; Ellis v. Smith, 1 Ves. Jr. 11; Armstrong v. Armstrong, 29 Ala. 538; Merritt v. Clason, 12 Johns. 102; Clason v. Bailey, 14 Johns. 484; In re will of Booth, 127 N. Y. 109; Catlett v. Catlett, 55 Mo. 330; Warwick v. Warwick, 86 Va. 596; Waller v. Waller, 1 Gratt. 454; 1 Jarm. Wills, (5th Am. ed.) 79, 80; 1 Redf. Wills, (4th ed.) 210 et seq.

In accordance with the terms of the report a decree is to be entered reversing the decree of the Probate Court, admitting the will to probate and remanding the case to that court for further proceedinga

So ordered.

J. S. Patton, (F. J. Ranlett with him,) for the appellee.

J. G. Palfrey, (H. Twombly with him,) for the appellants.