Will, Execution, Attestation. Witness, Attestation of will. Under R.L.c. 135, § 1, which provides that a will may be signed by the testator "or by a person in his presence and by his express direction," where a testatrix who was physically weak was doubtful as to her capacity to sign her name, and after being told that, if she was unable to sign her name, the nurse could sign it for her, was asked, "Is this agreeable to you?" upon which she "nodded her head and said `Yes,'" a signature by the hand of the nurse can be found to have been a valid signature of the testatrix.
The nurse of a testatrix, who in her presence and by her express direction signed the name of the testatrix to her will, is a competent attesting and subscribing witness to the will, the signature attested being under R.L.c. 135, § 1, the signature of the testatrix herself and not that of the person who wrote it.
R.L.c. 135, § 1, does not require that a testator should request the subscribing witnesses to attest his will or that he should declare the instrument to be his will. It is sufficient that the witnesses should attest and subscribe the will in the presence of the testator.
BRALEY, J.
The evidence is ample to show that the instrument offered for probate had been prepared by the express direction of the testatrix to whom the final and complete draft had been read preparatory to its execution. If by reason of physical weakness although possessed of testamentary capacity she was unable to affix her name, the R.L.c. 135, § 1, provides that the will may be signed by the testator "or by a person in his presence and by his express direction." The power to make this disposition of her property having been conferred solely by statute, the first question raised by the appellant's exceptions is, whether the will was executed in accordance with the requirement. Brettun v. Fox, 100 Mass. 234, 235.
It is plain on the testimony recited in the record, that the single justice was warranted in finding, that the scrivener who drew the will, having informed the testatrix of the presence of the witnesses and that it was ready for her signature, asked her, "Can you sign your name?" and, upon her whispered response "I don't know," he said in substance, "If you are not able to sign your name, the nurse Margaret Phee can sign for you. Is this agreeable to you?" and the testatrix "nodded her head and said `Yes.'" It necessarily followed from this unambiguous answer, that the testatrix intended and directed that the document before her should be executed in her behalf as her will.
But, if the execution was valid the statute also requires that a will must be attested and subscribed in the presence of the testator by three or more competent witnesses, and the second question relates to the competency of Margaret Phee to act also as a witness. R.L.c. 135, § 1. It is not contended that she had any actual pecuniary interest by which she would have been disqualified. Hawes v. Humphrey, 9 Pick. 350, 356, 357. R.L.c. 135, § 3. And the argument of counsel for the appellant in effect is, that she could not attest her own signature. But what had been done became by force of the statute the act of the testatrix. It was her will which the witnesses attested even if her name was written by the delegated hand of one of them. In re Clark, 2 Curt. Eccl. 329. Riley v. Riley, 36 Ala. 496, 500. Robins v. Coryell, 27 Barb. 556. Scott v. Hawk, 107 Iowa, 723; 4 Prob. Rep. Ann. 255; 70 Am. St. Rep. 228. See In re Butler's estate, 14 Prob. Rep. Ann. 395, 406.
It also was unnecessary, as the appellant further urges, that she should have formally requested the witnesses to attest the will. The statute was satisfied when they subscribed in her presence, and no publication was required. Nickerson v. Buck, 12 Cush. 332. Tilden v. Tilden, 13 Gray, 110. We accordingly find no error in the rulings at the trial, and the exceptions must be overruled.
So ordered.