THE MODE OF EXECUTION depends upon the statutory requirements; 3 Jarm. Wills (Rand. & Talc. ed.) 763.
By the uniform act relating to foreign wills, a will admitted to probate in the tes tator's domicile may be admitted to probate in the state passing the act by filing a duly exemplified copy thereof. It has been enact ed in Colorado, Kansas, Louisiana, Massa chusetts, Michigan, Rhode Island, Washing ton, Wisconsin and Alaska.
Under the English statute of frauds, 29 I Car. II as "signing" only was required, it was held that a mark was sufficient; 8 Ad. & E. 94 ; Chaffee v. Missionary Convention, 10 Paige, Ch. (N. Y.) 85, 40 Am. Dec. 225. And under the statute of 1 Vict. c. 26, the same form of execution is required so far as signing is concerned. But sealing seems not to be sufficient where signing is required ; 1 Wils. 313; 1 Jarm. Wills 69, 70. So, it was immaterial in what part of the will the tes tator signed: It was sufficient if the instru ment began, I, A B, etc., and was in the handwriting of the testator, and he treated lthat as signing or did not regard the instru ment as incomplete, as it evidently would be so long as he intended to do some further act to authenticate it; 1 Eq. Cas. Abr. 403, pl. 9; Prec. in Chanc. 184; Adams v; Field, 21 Vt. 256. But, if it appear from the form of attestation at the close, or in any other I way, that the testator did not regard the in strument as complete, the introduction of the testator's name at the beginning, in his own handwriting, is not a sufficient signing; Dougl. 241; Waller v. Waller, 1 Gratt. (Va.) 454, 42 Am. Dec. 564 ; Ramsey v. Ramsey's Ex'r, 13 Gratt. (Va.) 664, 70 Am. Dec. 438; Chaffee v. Missionary Convention, 10 Paige, Ch. (N. Y.) 85, 40 Am. Dec. 225. See 7 Q. B. 460.
Inability to write does not create a pre sumption that a testator did not know the contents of the paper declared to be by him his last will and duly executed as such. There is a presumption that the testator does know the contents of a will properly execut ed, which, while not conclusive, must prevail in the absence of proof of fraud, undue influ ence, or want of testamentary capacity, even where the testator's inability to read is prov ed; Lipphard v. Humphrey, 209 U. S. 264, 28 Sup. Ct. 561, 52 L. Ed. 783, 14 Ann. Cas. 872.
The testator should sign before the wit nesses subscribe; L. R. 2 P. & D. 97; Jackson v. Jackson, 39 N. Y. 153 ; but if the testator acknowledge his signature, so that the wit nesses can see it at the time, it is enough ; 7 P. D. 102.
A will may be signed by another, if done in the testator's presence and at his request, when he cannot write; Lord v. Lord, 58 N. H. 7, 42 Am. Rep. 565 ; or is physically in capacitated; Smythe v. Irick, 46 S. C. 299, 24 S. E. 69, 32 L. R. A. 77, 57 Am. St. Rep. 684; but see McFarland v. Bush, 94 Tenn. 538, 29 S. W. 899, 27 L. R. A. 662, 45 Am. St. Rep. 760.
In England and in some states there is a statutory requirement that the sigriature shall be at the end of the will. In England it was held to mean the end of the sequence of meaning ; 3 Sw. & Tr. 427 ; but in New
York, literally, the physical end of the writ ing; In re O'Neil's Will, 91 N. Y. 516; In re Conway, 124 N. Y. 455, 26 N. E. 1028, 11 L. R. A. 796 ; and the statute was not complied with if any disposing part of the will fol lowed the name signed ; In re Andrews' Will, 162 N. Y. 1, 56 N. E. 529, 48 L. R. A. 662, 76 Am. St. Rep. 294 ; where the attestation and signature were at the top of the second page so that the two first paragraphs made a com plete will, it was held not subscribed at the end when the third paragraph contained fur ther material and a complete disposition of property in no way connected with the first or second page ; and where the name was not signed in a blank left for it, but in one con tained in the printed attestation clause ; Sears v. Sears, 77 Ohio St. 104, 82 N. E. 1067, 17 L. R. A. (N. S.) 353, and note, 11 Ann. Cas. 1008; but it was held sufficient when it fol lowed the attestation clause; In re Morrow's Estate, 204 Pa. 479, 54 Atl. 313 ; see 21 Harv. L. Rev. 452. In a later Pennsylvania case, it was held that the validity of the signature with respect to its position depends on the continuity of sense and not the mere position on the page ; In re Swire's Estate, 225 Pa. 188, 73 Atl. 1110, where the signature was at the bottom of the page after paragraph eight with three other paragraphs written on the margin ; but where there was written on the margin a disposing clause separate and not marked to show where it came in, the signature at the bottom of the last page of what was written across was not "at the bottom". In Irwin v. Jacques, 71 Ohio St. 395, 73 N. E. 683, 69 L. R. A. 422, it was said that the only question is whether it has been executed in substantial compliance with the statutory requirements ; and where a marginal interlineation was immaterial, the will was admitted to probate; In re Gibson's Will, 128 App. Div. 769, 113 N. Y. Supp. 266. Where there was a blank space between the last clause and the in testinumium clause (in a printed blank) it did not invalidate the will, as the signature, being in the place in tended, was held to be at the end ; Mader v. Apple, 80 Ohio St. 691, 89 N. E. 37, 131 Am. St.' Rep. 719, 23 L. R. A. (N. S.) 515, and note, with cases. But where there was a long blank above the signature where unauthor ized insertions could have peen made, and a material part of the will was written after the signature in lieu of in the blank where it belonged, it was held not properly executed; In re O'Neil's Will, 91 N. Y. 516 ; In re Con way, 124 N. Y. 455, 26 N. E. 1028, 11 L. R. A. 796 ; where the whole of the disposing portion of a will was written on the first side of a sheet of foolscap, the second and third sides being blank, while the attestation clause, with the signatures of the testator and the witnesses, was on the fourth side, the will was held to be duly executed; [1892) Prob. 377.