Dunham

334 Mass. 282 (1956)

134 N.E.2d 915

KENNETH DUNHAM, petitioner.

Supreme Judicial Court of Massachusetts, Barnstable.

November 28, 1955.

June 6, 1956.

Present: QUA, C.J., RONAN, WILKINS, WILLIAMS, & WHITTEMORE, JJ.

Richard S. McCabe & James W. Luby, for the appellants, submitted a brief.

RONAN, J.

This is an appeal from a final decree of the Probate Court for Barnstable County disallowing an instrument offered for probate as the will of one Harry A. West on the ground that the said instrument "was not properly attested by the third witness and that consequently it was not properly executed."

We recite the report of the material facts filed by the judge. It appears that at the request of West one Dunbar and his wife, both understanding that a paper which West produced was his will, signed their names as witnesses in the presence of West. When they signed, the alleged will *283 was folded above West's signature which was visible and was seen by both of the Dunbars when they became witnesses. No person was present at the time other than the Dunbars and West. Later in the evening or the next day West requested one Thomas to witness an instrument which West told him was his will. The paper was folded crosswise, leaving the signatures of West and Dunbar under the fold but leaving visible the signature of the second witness, Mrs. Dunbar. Thomas observed her signature but he did not see the other two signatures although he was not restrained or prevented from lifting the paper in order to see what was above his signature. He did not do so. He signed on the line below that of Mrs. Dunbar and then gave the paper back to West. The judge found that the signatures of West and both of the Dunbars were on the instrument when Thomas signed, that the paper was under the control of Thomas when he signed, that he could have seen West's signature "simply by unfolding the paper, and that said signature was not actively hidden or concealed by the testator from the witness, although it was hidden from his gaze by the position of the folded paper and he failed to exert the slight muscular effort necessary to see it." The judge disallowed the instrument as a will because it was not properly attested by Thomas.

Our statute, G.L. (Ter. Ed.) c. 191, § 1, which is patterned upon the English statute of frauds, 29 Car. II, c. 3, § 5, provides that a person of full age and sound mind "may by his last will in writing, signed by him ... and attested and subscribed in his presence by three or more competent witnesses, dispose of his property...." The testator is not required to sign in the presence of the witnesses, for the instrument has been held to be validly executed if the testator acknowledges his signature which he has previously placed thereon by exhibiting the paper to the witness, stating that it is his will, and requesting the person to sign it as a witness. It was early decided in Dewey v. Dewey, 1 Met. 349, which relied upon the English cases of White v. Trustees of the British Museum, 6 Bing. 310, and Wright v. Wright, *284 7 Bing. 457, and a careful analysis of the statute, Rev. Sts. c. 62, § 6, which did not differ materially from the present statute, G.L. (Ter. Ed.) c. 191, § 1, in the aspect with which we are now concerned, that the fact that one of the subscribing witnesses did not observe the testator's signature did not invalidate the execution of the will where the signature was visible to the witness. That decision has been followed and recently affirmed in Barber v. Henderson, 304 Mass. 3, with an ample citation of authorities. This last cited case is distinguishable from Nunn v. Ehlert, 218 Mass. 471, and cases following it, Hawkes v. Hawkes, 230 Mass. 11, Leatherbee v. Leatherbee, 247 Mass. 138, and Tredick v. Bryant, 269 Mass. 50, on the ground that in those cases the testator "does not acknowledge his signature upon the instrument when he conceals that signature from the witness, and that under such circumstances there is no valid attestation." Barber v. Henderson, 304 Mass. 3, 5. The judge in the case at bar found that there was no intentional concealment of the signature from Thomas. It was not "actively hidden or concealed" from Thomas although the instrument rested in such a position that the testator's signature was not visible. We infer from the findings of the judge that the instrument was handed to Thomas for his signature and that he put the instrument in the position in which it was when he signed. He then gave the will back to the testator. The testator had acknowledged the instrument as his will when he produced it and handed it to Thomas, after Thomas had assented to become a witness.

It was said in Hogan v. Grosvenor, 10 Met. 54, 56, "His acknowledgment that the instrument is his, with a request that they attest it, is sufficient"; and in Nickerson v. Buck, 12 Cush. 332, 342-343, that "it has been repeatedly held that a declaration by the testator to the witness, that the instrument is his will, or even a request by him to the witness to attest his will, or other varied form of expression implying that the same had been signed by the testator, are either of them quite sufficient" proof of a proper attestation.

The failure of a witness to see the testator's signature, *285 which is written on the face of the instrument which the testator declares to the witness is his will, due to the fact that the signature of the testator is unintentionally withdrawn from the view of the witness by a fold in the instrument, does not render void the execution of the instrument as a will. See Betts v. Lonas, 172 Fed. (2d) 759; Will of Johnston, 225 Wis. 140; Paige, Wills, § 349; 127 A.L.R. 384.

Decree reversed.