MAR K. A sign, traced on paper or parch ment, which stands in the place of a ture;, usually made. by' persons who cannot write.. , The use of the mark in ancient times was .not confined to illiterate persons; among the Saxons the mark of the cross, as an attestation of. the good faith of the person signing, 'was required to be at tached to the signature of those who could write, as well as to stand in the place of the signature of those who could not write. It was the symbol of an oath. It is most often the sign of the cross, made in a little space' left between the Christian name and surname ; 2 Bla. Cora. 305 ; Zacharie v. Franklin, 12 Pet. (tr. S.) 151, 9 L. Ed. 1035 ; 2 Ves. Sen. 455; 1 V. & B. 362.
Before the reign of Stephen, the cross was used, even- by the king, in formal documents, and was even considered more sacred than a seal. 2 Poll. & Maitl. 223.
The word his is usually written above 'the mark, and the word mark below it; Schoul. Wills 303, 305. But it is not essential that these words shall be attached to the mark made or adopted by a person unable to write, in . the execution of a deed, as it is sufficient if it appears that he in fact made the mark or adopted it; Sellers v. Sellers, 98 N. C. 13, 3 S. E. 917. A mark is a signa ture; Zacharie v. Franklin, 12 Pet. (U. S.) 151, 9 L. Ed. 1035 ; Willoughby v. Moulton, 47 N. H. 205 ;, State v. Byrd, 93 N. (1. 624; Foye v. Patch, 132 Mass. 105. And it may be proved as handwriting: by one who has seen the person make his mark ; Strong's Ex'rs v. Brewer, 17 Ala. 706 ; Fogg v. Den nis, 3 Humph. (Tenn.) 47; Jackson v. Van Dusen, 5 Johns. (N. Y.) 144, 4 Am. Dec. 330; contra, Shinkle v. Crock, 17 Pa. 159. A mark is now held to be a good signature though the party was able to write ; 8 Ad. & E. 94; 3 Curt. 752 ; Jackson v. Van Dusen, 5 Johns. (N. Y.) 144,4 Am. Dec. 330; In re Flannery's Will, 24 Pa. 502; St. Louis Hospital Ass'n v. William's Adm'r, 19 Mo. 609 ; Horton v. Johnson, 18 Ga. 396; Upchurch v. Upchurch, 16 B. Monr. (ray.) 102. The signature of a subscribing witness to a deed may be made by a cross mark ; Devereux v. McMahon, 102
N. C. 284, 9 S. E. 635.
It is not necessary that the person execut ing, if unable to write, touch the pen while the person authorized signs his name; Ken nedy v. Graham, 9 Ind. App. 624, 35 N. E. 925, 37 N. E. 25. See SIGNATURE.
It is considered settled that the fact that a person can write does not invalidate a signature by mark, or where the signer holds the pen while it is guided by another ; In re Pope's Will, 139 N. C. 484, 52 S. E. 235, 7 L. R. A. (N. S.) 1193, 111 Am. St. Rep. 813, 4 'Ann. Cas. 635; Main v. Ryder, 84 Pa. 217; Stevens v. Vancleave, 4 Wash. C. C. 262, Fed. Gas. No. 13,412 ; 8 Ad. & EL 94; though a few cases seem to hold otherwise; 6 Notes of Cases 15 ; but this case is of course dis posed of by the later decisions under subse quent statutes. Nor is such a signature in validated by the absence of attestation, though the proof of execution might be there by made more difficult ; Bickley v. Keenan, 60 Ala. 295; Truman v. Lore's Lessee, 14 Ohio St. 144; Frost v. Deering, 21 Me. 156; Tonnele `v.. Hall, 4 N. Y. 145.
As to signature by mark, generally, see 22 L. R. A. 370, note. ' A cross mark opposite the seal,' made, by a grantor of a deed immediately under a clause containing his name and stating that he has signed his name and affixed his seal, constitutes a sufficient signature, and may be construed as an adoption of the name in such clause as a signature ; Devereux v. McMahon, 108 N. C. 134, 12 S. E. 902, 12 L. R. A. 205.
Where the testating.witnesses are all dead, proof of their signatures is sufficient to bate a will signed by mark ; Jackson v. Van Dusen, 5 Johns. (N. Y.) 144, 4 Am. Dec. 330; Lyons v. Holmes, 11 S. C. 429, 32 Am. Rep. 483; but it is not sufficient when the wit ness, after 25 years, merely states that he certainly saw the testatrix sign the paper or he would not have put his name there, but that he is unable to recall the circumstances; Wienecke v. Arbin, 88 Md. 182, 40 Atl. 709, 44 L. R. A. 142.