Williams v. Stewart

YORK, P. J.—

Joseph Simmons, a childless widower, by ,his..last will which he executed on. October 16, 1942, devised certain real property to friends of his, respondents herein, and named Mrs. Ruth Stewart, executrix and residuary legatee. Mr. Simmons died on March 22, 1943, at the age of eighty-one years, and Mrs. Stewart petitioned the court for the probate of the will and for letters testamentary, where

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upon Christine Williams, a niece of testator’s predeceased wife, filed her opposition to the prohate of said will on the grounds: (1) that it was not legally executed; (2) that testator was incompetent to make a will; and (3) that the will was executed through the fraud and undue influence of the beneficiaries.

The jury brought in a general verdict in favor of the proponents of the will and also special verdicts to the effect, (1) that testator was of sound and disposing mind and memory at the time of the execution of the will; (2) that he was not induced to execute the will by means of fraud or undue influence exercised by the proponents.

From the judgment which was thereafter entered pursuant to such general and special verdicts, and admitting the will to probate, Christine Williams, the contestant, prosecutes this appeal, urging (1) that the execution of the will did not meet statutory requirements, and (2) testator was mentally unsound at the time he executed the will.

In connection with her first point, appellant claims: (1) that testator did not subscribe his name to the will; (2) that he did not sign it in the presence of the witnesses; (3) that he did not declare or publish the document as his last will; (4) that the witnesses were not requested by testator to subscribe their names to the will as witnesses; and (5) that neither witness subscribed his name to the will or otherwise in the presence of testator, nor in the presence of each other.

Testator, who was unable to read or write, executed the will by mark under the following circumstances, according to the testimony of Ivan J. Johnson, III, the attorney who prepared the will and was one of the witnesses thereto, as well as a witness to testator’s signature by mark:

“Q. I will show you an instrument which bears the signature of Ivan J. Johnson, III. Is that your signature? A. That is my signature. Q. Did you prepare this document yourself? A. Tes. . . . Q. And at whose request? A. At Joseph Simmons’. Q. Tou may state whether or not he put his cross on the place for signature between the words ‘Joseph’ and ‘Simmons’. A. He did. Q. Did he do that in your presence ? A. He did. Q. And did you know Della Mae Fletcher (the other witness to the will) ? A. I did. Q. Was she present at that time? A. She was ... Q. Tou may state