The signature of a resident of the District of Columbia to a
will executed abroad was witnessed on the day of execution by two
witnesses; on the day following, an American vice consul signed, as
such and under seal, a certificate that the testator had appeared
before him and acknowledged the will and his signature thereto. It
did not state that the testator signed in his presence. The law in
the District of Columbia required three witnesses in testator's
presence, but did not require the testator to sign in presence of
witnesses. The will was attacked also on grounds of testator's
insanity and undue influence on the testator who had, previous to
the execution of the will, been for a short time in an insane
asylum. In an action affecting title to real estate, there were
issues sent to a jury and the title under the will sustained.
Held that:
Under the circumstances in this case, the jury might properly
draw the inference that the vice consul executed the certificates
in the ordinary course of business and in presence of the
testator.
Although a notary taking an acknowledgment as required by law is
not, in the absence of separate signature as such, to be regarded
as a witness, inasmuch as the certificate in this case was not
required by law and was unnecessary, it was, together with the
description appended to the vice consul's name, immaterial, and
could be disregarded as surplusage, and the vice consul's signature
regarded as that of a witness in his unofficial capacity.
Page 196 U. S. 39
The application of a relative, and the certificates of
physicians, for the admission of testator to an insane asylum, from
which he had been released apparently in sound condition prior to
the execution of the will, were properly excluded, both because not
sworn to and given in a different proceeding and on a different
issue.
There was no error in submitting the question of testator's
insanity to the jury with the instruction that, if they found that
the insanity was permanent in its nature and character, the
presumptions were that it would continue, and the burden was on
those holding under the will to satisfy the jury that he was of
sound mind when it was executed.
A man may be insane to the extent of being dangerous if set at
liberty, and yet have sufficient mental capacity to make a will,
enter into contracts, transact business and be a witness.
This was an action of ejectment brought in the Supreme Court of
the District by grantees of the heirs at law of William Thomson
against Joseph H. Moore and the firm of Thomas J. Fisher &
Company, agents of Mary Cecelia and Georgiana Hawkes Thomson, of
the County of Kent, England, devisees under the will of William
Thomson, to recover possession of an undivided ninety-one one
hundredths of certain real estate in the City of Washington. Upon
the trial, it was admitted that William Thomson died in
Southampton, England, in 1887, seised of the lot in question; that
he was born in, and was a citizen of, the United States, leaving no
issue or descendants. Plaintiffs had acquired the title of the
heirs at law, and the defendants were in possession of the lot as
life tenants under his alleged will.
The validity of the will and the due execution thereof were
contested by the plaintiffs for reasons hereinafter indicated in
the opinion. The trial resulted in a verdict for the defendants,
upon which judgment was entered, and affirmed by the Court of
Appeals. 22 App.D.C. 9.
Page 196 U. S. 40
MR. JUSTICE BROWN delivered the opinion of the Court.
The validity of the will was attacked upon three grounds: 1st,
that it has not the requisite number of witnesses to pass real
estate in this District; 2d that the testator was of unsound mind;
3d that undue influence had been exercised by one of the designated
executors, and others.
Thomson was a resident of Washington, but at the time of and for
some years prior to his death was the American consul at
Southampton, England. One John H. Cooksey, a resident merchant at
Southampton, was his vice consul. The will was prepared by Walter
R. Lomer, a resident solicitor, and was executed at his office
February 24, 1866. By this will, he devised the property in
controversy to the appellees Mary Cecelia Thomson and Georgiana
Hawkes Thomson, his cousins, of Kent County, England, jointly for
their joint lives, and to the survivor of them, with remainder to
Mary Cunningham Roberts, of London, for life, and remainder in fee
to her only son. The will, which was executed in duplicate, was
written upon two sheets of paper, to each of which the testator
affixed his name. It was witnessed in the usual form by Lomer and
by one Linthorne, a clerk in his office, who attached their
signatures in the presence of and at the request of the testator,
and in the presence of each other. On the day after the execution
of the will, Thomson again went to the office of his solicitor,
Lomer, who wrote a certificate of acknowledgment in the margin of
the second and last page of the will, which was signed by Cooksey,
the vice consul.
The original will, being of record in the Probate and Admiralty
Division of the High Court of Justice in London, could not be
produced, but was proved by a certificate and examined copy. The
attestation clause and the certificate were as follows:
"Signed and acknowledged by the said William Thomson,
Page 196 U. S. 41
the testator, as and for his last will and testament in the
presence of us, both being present at the same time, who at his
request in his presence, and in the presence of each other have
hereunto subscribed our names as witnesses."
"Walter R. Lomer"
"
Solicitor, Southampton, Eng."
"R. Roupe Linthorne"
"
His Articled Clerk"
"I hereby certify that William Thomson, consul at Southampton
for the United States of America, attended before me this 25th day
of February, 1886, and acknowledged the foregoing paper writing
contained in two sheets of paper as his last will and testament and
that the signature 'Wm. Thomson' at the foot thereof is in the
proper handwriting of the said William Thomson."
"[Seal U.S. Consul.] John H. Cooksey"
"
Vice Consul United States of America"
The execution of the will was proved by the two subscribing
witnesses, Lomer and Linthorne, and the certificate by proof of the
death of Cooksey, and the genuineness of his signature. This was
proper.
Clarke v.
Courtney, 5 Pet. 319;
Stebbins v. Duncan,
108 U. S. 32. At
this time, there was in force in this District the fifth section of
the Act of 29 Charles II, chapter 3, which had been adopted in
Maryland in 1798, and carried into this District as section 4,
chapter 70, of the Compiled Statutes of 1894. It provided as
follows:
"All devises and bequests of any lands or tenements devisable by
law shall be in writing, and signed by the party so devising the
same, or by some other person in his presence, and by his express
directions, and shall be attested and subscribed in the presence of
the said devisor by three or four credible witnesses, or else they
shall be utterly void and of none effect."
The object of the certificate in question that Thomson took the
will away with
Page 196 U. S. 42
him is not entirely clear, though from the fact after its
execution, and stated that he would attend before the consul
general at London and obtain the requisite certificate, it would
seem that he thought the certificate was necessary to the proof of
the will in another country. He did not go to London, however, but
called again at Mr. Lomer's office with the request that he prepare
the requisite certificate, which he afterwards procured Mr. Cooksey
to sign. The certificate was not offered as proof that the will was
a copy of the original, since it was annexed to the original, and
we can consider it only as proof as to what it contains. It
certifies, in substance, that the testator attended before Cooksey
upon the day following the date of the will, acknowledged it to be
his last will and testament, and that the signature is genuine.
Whether he intended to certify that Thomson acknowledged his
signature to be genuine, or that he, Cooksey, certified that it was
genuine, is somewhat uncertain; but if the words "Vice Consul of
the United States of America," which are merely superfluous, were
omitted, there would be no failure to comply with the statute,
unless in the omission to certify that Cooksey, the certifying
officer, "attested and subscribed in the presence of the said
devisor." But as it appears that Thomson, not knowing when he would
be in London, took the certificate to the vice consul, and that the
latter signed it, the jury might properly draw the conclusion that
it was signed in the testator's presence. This would be the usual
course of business, and the presumption is that Cooksey conformed
to it and to his duty as a certifying officer.
The certificate was probably prepared under the belief that
wills, like deeds, made in a foreign country must be executed and
acknowledged before some foreign official, or "before any (some)
secretary of legation or consular officer of the United States"
(Rev.Stat. section 1750; Compiles Statutes D.C., chapter 58,
section 6); but as such certificate was unofficial, and contributes
nothing, as such, to the validity of the will, it can only be
looked upon as the affirmation of an ordinary witness to the facts
therein stated. No particular form of attestation was
Page 196 U. S. 43
necessary, as appears to be the case in England and in several
of the United States, and if the certificate of Cooksey had been
written at the foot of the will and signed by himself and by the
two witnesses, Lomer and Linthorne, it would have been a sufficient
attestation. How, then, can it be regarded as insufficient when an
attestation in one form is signed by two witnesses and an
attestation in another form by a third? Bearing in mind that the
certificate, if given any force at all, must be considered an
attestation, we do not think that the fact that it may have been
written and signed under a mistaken impression as to its necessity
and purpose vitiates it as an attestation. What use was intended to
be made of it is immaterial if it were useless for any purpose as
an official certificate. The facts certified are appropriate to the
attestation of the instrument, and, if true, we see no reason for
holding it to be invalid as an attestation because it was signed
under the impression that it was necessary for some possible
purpose as a certificate.
The case of
Adams v.
Norris, 23 How. 353, is much in point. This was an
action of ejectment for a parcel of land in California. Plaintiffs
claimed through the heirs at law of one Grimes, defendants through
the devisees in his will. The law required three witnesses to the
validity of the will. Two of the witnesses signed in the usual
manner, but above their signatures and beneath that of the testator
was written: "Before me, in the absence of the two alcaldes,
Roberto T. Ridley, Sindico." The sindico was counted among the
witnesses, the court saying:
"We comprise among the witnesses to the will Ridley, the
sindico. It does not appear that a sindico was charged with any
function in the preparation or execution of testaments by the law
or custom of California. Nor is it clear that the sindico in the
present instance expected to give any sanction to the instrument by
his official character. He attests the execution of the will, and
we cannot perceive why the description of himself, which he affixes
to his signature, should detract from the efficacy of that
attestation."
As it did not
Page 196 U. S. 44
appear that the sindico or the two alcaldes were charged with
any special duties, it was practically held that the certificate of
acknowledgment, and the official character of the sindico, might be
disregarded, and the signature treated as an attestation.
In the case of
Clarke v. Turton, 11 Ves.Jr. 240, the
will was executed abroad. it appears that three witnesses were
required, apparently under the same act of Charles II as in this
case. The third signature was, as in this case, that of the vice
consul, whose attestation was considered necessary to the validity
of the act. The case is insufficiently reported, but the court held
that the attestation was a memorandum of the vice consul, to
operate as a certificate, "a separate act in his public character,
and sealed with his official seal, and therefore it could not be
said he subscribed as a witness." The question upon that point was
sent to law, but it does not appear what disposition was made of
it. It appears, that the certificate was an official act, and
treated as necessary, but the report fails to show what it
contained, and, in the absence of such showing, the case is of
little value.
The applicability, and, to some extent, the authority, of this
case is somewhat weakened by that of
Griffiths v.
Griffiths, L.R. 2 P. & D. 300. The will was signed by the
testator in the presence of two witnesses, who signed their names
in his presence -- one opposite the word "Executors" and the other
opposite the word "Witness." There was no attestation clause to the
will. The deceased intended one of the witnesses to be his
executor, and asked him to sign his name in that character. Lord
Penzance held that such person did not sign the will exclusively as
executor, but that he also intended by his signature to affirm that
the deceased executed the will in his presence, and that
consequently the will was valid. Somewhat to the same effect is
Pollock v. Glassell, 2 Gratt. 439.
Conceding the general rule to be that witnesses must intend to
attest the will as witnesses, the inference is strong that Cooksey
did so in this case, as he certifies to the genuineness of the
signature of Thomson and to the acknowledgment
Page 196 U. S. 45
of the will in his presence, and these are what would have been
required by the law of this District had the instrument been a
deed. It is argued that Cooksey did not intend to attest the will,
but merely to sign the certificate; but the certificate of what?
Only the fact that the will was acknowledged in his presence and
that the signature was genuine. This is precisely the object of an
attestation, and as an attestation we think it must be regarded. He
may have supposed his official certificate of acknowledgment
necessary to the execution of a will in a foreign country, but as
he did certify personally to such acknowledgment the addition of
his official title adds nothing to, and takes nothing from, the
weight of his attestation. We must conclude that he intended to
certify exactly what he did certify, and we are giving it exactly
the effect he intended to give it.
If the certificate were an official act and material as a
separate acknowledgment of the execution of the will, as in the
acknowledgment of a deed, the case would be different, since it has
never been supposed that a notary, who takes an acknowledgment of a
deed, could be counted as a witness to the deed without a separate
signature. But here the certificate was a wholly unofficial act,
and we see no objection to disregarding the words "Vice Consul of
the United States," and treating it as an acknowledgment of the
execution before a competent witness. The acknowledgment of a will
is really a feature of the attestation. The statute did not require
that the devisor should sign the will in the presence of the
witness, but that the witness should sign in the presence of the
testator.
2. The evidence of Thomson's insanity was quite unsatisfactory.
It appears that, during the autumn or early winter of 1885 he was
seized with an acute mania, and on December 15 was committed to a
private insane asylum as a lunatic, upon the certificate of two
physicians, and at the request of a cousin, named James E.
Cunningham, a merchant of London, who appears to have taken
temporary management of his affairs. He remained in the asylum
about six weeks, and
Page 196 U. S. 46
on February 1, 1886, somewhat more than three weeks before he
executed his will, was discharged as probably cured -- in reality
granted a leave of absence on probation. The belief in his cure
being justified by his subsequent conduct, a formal order of
discharge was entered on the record of the asylum on June 26, 1886.
Lomer and Linthorne, the witnesses who were present at the
execution of the will, and Septimus Cooksey, the son of the vice
consul, all testified to the mental capacity of the testator at
that time.
In this connection, exception was taken to the exclusion of the
application of James E. Cunningham for the admission of Thomson to
the insane asylum, and of the certificate of the two physicians as
to his insanity. These were properly excluded, not only because
they were unsworn testimony, but because they were given in a
different proceeding and upon a different issue. Thomson may have
been insane to the extent of being dangerous if set at liberty, and
yet may have had sufficient mental capacity to make a will, to
enter into contracts, transact business, and be a witness. In the
case of
Leggate v. Clark, 111 Mass. 308, the admission of
similar testimony was treated as error. In addition to this,
however, these certificates were both dated December 14, 1885, more
than two months before the will was made, and are by no means
inconsistent with the other testimony that he was released from the
asylum as cured February 1, 1886, and that three weeks after that,
when he executed the will, he appeared to be of sound and disposing
mind and memory.
In addition to the proof of his commitment to the asylum and of
his undoubted insanity prior and for some time subsequent thereto,
there was slight evidence of insane acts during the month of
February, though there was no opinion expressed by anyone that he
was incapable of making a valid deed or contract. The whole
testimony regarding his insanity was duly submitted to the jury,
who were instructed that, if they found his insanity to be
permanent in its nature and character, the presumptions were that
it would continue, and the
Page 196 U. S. 47
burden was upon the defendant to satisfy the jury by a
preponderance of testimony that he was at the time of executing the
will, of sound mind. There was no error in this instruction.
There were also a large number of exceptions taken to the
admission or exclusion of testimony and to the charge of the court,
but to consider them in detail would subserve no useful purpose. We
have examined them carefully, and have come to the conclusion that
there was no ruling of the court of which the plaintiffs were
entitled to complain. The evidence of insanity was very slight, and
there was no legal testimony to show that the will was executed
under the pressure of an undue influence.
The judgment of the Court of Appeals is therefore
Affirmed.