Farrell v. McDonnell
Farrell v. McDonnell
Opinion of the Court
Alice L. McDonnell and John C. Turner, coexecutors of the estate of Helen M. Kendall (collectively, coexecutors), appeal from a decree of the Probate and Family Court disallowing Kendall’s will on the ground that it was not properly executed.
Background. The facts are not disputed. On March 18, 2006, Kendall went with the coexecutors to the Citizens Bank in the Davis Square section of Somerville, intending to execute (and
Lindstedt could not recall any of the circumstances surrounding the execution of Kendall’s will. However, Lindstedt testified in detail about the practice that she regularly followed when notarizing a will. The judge credited her testimony and found that she followed her regular procedure in this case. See Mass. G. Evid. § 406(a) (2011). It was Lindstedt’s practice to verify a testatrix’s identity and to have her read aloud the attestation or notarization clause appearing before the signature line.
Although neither of the two witnesses had a specific memory of the event, each also testified as to his, or her, usual practice. The judge found that, after Kendall signed the will in the presence of Lindstedt, “the witnesses were . . . called to [her] desk and requested to affix their signatures to the document. The wit
Carrie testified that he followed the same practice “regardless of the [type of] document” he witnessed. It was his regular practice to look at the first page to verify that the name of the signatory was the person seated at the banker’s desk; he also would review any form of identification that had been provided. Rosa testified that when she witnessed a document, her regular practice was to look at the form of identification provided by the signatory and confirm that the name was consistent with the signature and “matched the person sitting at the desk.” She sometimes would engage in conversation with the signatory if she (Rosa) was not busy or rushed.
Kendall died on August 14, 2007, at the age of ninety. The co-executors filed their petition to probate the will on September 12, 2007, and Rita Farrell, Thomas R. Powers, and Diana Powers (collectively, contestants)
Discussion. The coexecutors do not quarrel with the facts found by the judge; they challenge only his conclusion that the will was not properly executed. “It is our obligation to review the evidence and reach a decision in accordance with our own reasoning and understanding, giving due weight to the findings of the trial judge, which we will not reverse unless they are plainly wrong, and finding for ourselves any additional facts we believe to be justified by the evidence.” Heinrich v. Silvernail, 23 Mass. App. Ct. 218, 223 (1986), quoting from Olsson v. Waite, 373 Mass. 517, 520 (1977).
The governing statute provides, “Every person eighteen years of age or older and of sound mind may by his last will in writing, signed by him . . . and by his express direction, and attested and subscribed in his presence by two or more competent witnesses, dispose of his property.” G. L. c. 191, § 1, as amended through St. 1976, c. 515, § 3.
The parties dispute the significance of that presumption; in the coexecutors’ view, the judge failed to explain why the presumption did not apply. The contestants respond that the facts found by the judge rebut the presumption of proper execution. The question for us is whether the procedure followed was sufficient for the proper execution of the will or, more specifically, whether, on these facts, an inference properly can be drawn that Kendall acknowledged, even indirectly, to the witnesses that the signature on the will was hers.
First, there is no question regarding any of the signatures themselves. The judge accepted Lindstedt’s testimony that Kendall signed the will in her presence after reading aloud the attestation clause. Each of the witnesses, including Lindstedt, confirmed her
Second, although the two witnesses did not see Kendall sign the will, it is not necessary that the additional witnesses observe the “testator sign his name, or in express terms declare the signature to be his.” Ela v. Edwards, 16 Gray 91, 92 (1860). Kendall’s signature appeared in plain view directly above the place where the witnesses signed on the last page of the will; there is no allegation that any attempt was made to conceal her signature. See Barber v. Henderson, 304 Mass. 3, 5 (1939). In Barber, the court stated that “facts essential to a good attestation were present” and the provisions of the statute are met even if a witness does “not see the signing of the will by the testatrix.” Id. at 4.
The third, and crucial, question is whether Kendall acknowledged, even implicitly, that the signature on the will was hers. The judge’s conclusion that she did not “explicitly or impliedly acknowledge her signature” is based on his finding that the witnesses did “not have any conversation with Kendall nor did they see Ms. Kendall sign the will.” For support, he cited Flynn v. Prindeville, 327 Mass. 266 (1951). However, the facts in this case are distinguishable from those in Flynn, where counsel’s representations about anticipated testimony were that witnesses had been asked to come to a home and then were taken into a room where they:
“saw lying in bed a ‘very old lady who looked very ill’; that ‘she was lying very quietly with her eyes open but she did nothing and said nothing while [the witnesses] were there. . . . The lawyer . . . produced some papers which he arranged so that the only part of the papers that was open was the space in which he asked [the witnesses] to sign their names. . . . Nothing was said by anyone about whose will it was, and if [the lawyer] also signed the will or paper he did not do so in the presence of the other witnesses.’ ”
Id. at 269. This case is very different.
Although our cases previously have not addressed precisely these facts in the context of determining whether a will was properly executed, language in the decisions of other State courts lends support for our conclusion that the testatrix’s implied acknowledgment to the witnesses here was sufficient, and that the judge erred in dismissing the coexecutors’ petition for probate on the ground that the will was not properly executed.
So ordered.
The notarization clause here includes the following language: “Before me, the undersigned authority, on this day Personally appeared the Testatrix and the witnesses whose names Are signed to the foregoing instrument, and, all of these persons being by me duly sworn; the Testatrix declared to me and to the witnesses in my presence that the instrument is her last will and that she . . . willingly signed, and that she executed it as her free and voluntary act for the purposes therein expressed; and each of the witnesses stated to me, in the presence of the Testatrix that she signed the will as witness and that to the best Of her knowledge the Testatrix was eighteen years of age or over, of sound mind and under no constraint or undue influence.”
Lindstedt did not read the will.
At the time of her death, Kendall was survived by her two sisters, Rita Farrell and Elizabeth Farrell. Elizabeth Farrell died shortly after Kendall, on September 29,2007, and Thomas R. Powers and Diana Powers are the coexecutors of her will.
Repealed by St. 2008, c. 521, § 10, effective March 31, 2012.
See, e.g., Wheat v. Wheat, 156 Conn. 575, 583 (1968) (similar statute
Case-law data current through December 31, 2025. Source: CourtListener bulk data.