This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
In all states the statute requires, as did the English Statute of Frauds, that a will shall be signed by the testator, or, in the majority of states, by some other person, by the testator's express direction, and in his presence.55 The testator's own signature may be by means of a mark, even though he is able to write, provided the mark is intended as a signature ;56 and so, in signing, he may use
219, 172 S. W. 370; Phifer v. Mullis, 167 N. C. 405, 83 S. E. 582.
53. Barnewall v. Murrell, 108 Ala. 366, 18 So. 831; In re Kennedy, 159 Mich. 548, 28 L. R. A. (N. S.) 417, 134 Am. St. Rep. 743, 18 A. & E. Ann. 892; Heas-ton v. Krieg, 167 Ind. 101, 119 Am. St. Rep. 475, 77 N. E. 805; Brown v. Avery, 63 Fla. 376, Ann. Cas. 1914A, 90, 58 So. 34. And see Sewell v. Slingluff, 57 Md. 537. As to the admissibility of the maker's declarations upon this question, see 3 Wigmore, Evidence, Sec. 1736, and note in
52 Am. Dec. at p. 167.
54. Nicholls v. Nicholls, 2 Phillim. 183; Lister v. Smith, 3 Swab. & Tr. 282; 1 Jarman, Wills, 23. And such is the rule in Massachusetts. Fleming v. Morrison, 187 Mass. 120, 105 Am. St. Rep. 386, 72 N. E. 499.
55. 1 Stimson's Am. St. Law, Sec. 2640.
56. In re Clark's Estate, 170 Cal. 418, 149 Pac, 828; Robinson v. Brewster, 140 111. 649, 33 Am. St. Rep. 265; Bevelot v. Lestrade, 153 111. 625, 38 N. E. 1056; Rook v. Wilson, 142 Ind. 24, 51 Am. St. Rep. 163; Ahnert v. Ahnert, 98 only his initials, or his Christian name, or even adopt another name than his own.57 When the signature is by a person other than the testator, the requirements that it be by his direction and in his presence must be strictly complied with.58 Even in the absence of language in the statute expressly authorizing the signature to be made by another than the testator, by the latter's direction and in his presence, such a signature would, it seems, ordinarily be upheld as being in effect the signature of the testator himself, in the absence of language in the statute clearly showing a contrary intention.59 This would be in accord with the rule which prevails in the case of a conveyance inter vivos,60 as well as in other connections,61 and a different construction of the statute would have the unfortunate effect of disabling any person, incapacitated by physical disability to make a mark, from making a will. There appears no reason why a signature by another in one's own presence, properly proven, should not be as effective for the purpose of a will as for other purposes.
In regard to the position of the signature, the rules in the different states are not in accord. Under statutes which follow the English Statute of Frauds in merely
Kan. 768, 160 Pac. 201; Nickerson v. Buck, 12 Cush. (Mass.) 332; Plate's Estate, 148 Pa. St. 55, 33 Am. St. Rep. 805; In re Hers-perger's Estate, 245 Pa. 569, 91 St. 942; Wilson v. Craig, 86 Wash. 465, 150 Pac. 1179.
57. 1 Jarman, Wills, 79; In re Savory, 15 Jur. 1042; Knox's Estate, 131 Pa. 220, 6 L. R. A. 353, 17 Am. St. Rep. 798, 18 Atl. 1021.
58. Page, Wills, Sec.Sec. 175, 176; Waite v. Frisbie, 45 Minn. 361, 47 N. W. 1069; Murry v. Hen-nessey, 48 Neb. 608, 67 N. W. 470; Armstrong's Ex'r v. Armstrong's Heirs, 29 Ala. 538;
Greenough v. Greenough, 11 Pa. St. 489. See Pool v. Buffum, 3 Ore. 438, 443.
59. In re Mcelwaine, 18 N. J. Eq. 499, the statute was construed as requiring the physical act of signature to be the act of the testator, and Robins v. Coryell, 27 Barb. (N. Y.) 559 contains a dictum that such would be the case in the absence of words in the statute indicative of a contrary intention.
60. Ante, Sec. 457.
61. See authorities cited 25 Am. & Eng. Encyc. Law (2nd Ed.), 1066.
63. 1 Stimson's Am. St. Law, Sec. 2640; 1 Woerner, Administration, Sec. 39.
64. The cases upon the subject up to 1907 are collected in a note in 17 L. R. A. N. S. at p. 353. See also editorial note, 12 Columbia Law Rev. 380.
65. See c. g. Irwin v. Jacques, 71 Ohio St. 395. 69 L. R. A. 422, 73 N. E. 683; In re Swire, 225 Pa. St. 188, 73 Atl. 1110.
66. See Baker v. Baker, 51 Ohio St. 217; In re Andrews, 162 N. Y. 1, 48 L. R. A. 662, 76 Am! St. Rep. 294; Wineland's Appeal, 118 Pa. St. 37, 4 Am. St. Rep. 37.
That a clause appointing an executor is part of the will, so that if the signature precedes
469] Transfer by Will. 1821 tended that the will is not signed at the end thereof by reason of the fact that a very considerable blank space exists between the last clause of the will and the signature.67 The signature may be either before or after the "attestation" clause,68 the nature of which is explained in another section.69 If writing is added below the signature subsequently to the execution and publication of the will, it is merely an attempted codicil, not affecting the validity of the will as expressed in the writing before the signature.70