Watts v. Watts

Counsel

Ernest L. Shelton and Lamar F. Easterling, both of Jackson, for appellants. The instrument on its face is in the form of a deed. The proponents' own evidence shows that all of the parties to the transaction considered it to be a deed and shows that the instrument was recorded as a deed in Deed Book 101 at page 448 thereof. If the instrument was signed by the testatrix at all, which we deny, and she understood it, which we doubt, or if explained to her, which the record does not show, Ellen Watts in all probability thought the instrument was a deed reserving unto herself a life estate. If the instrument be a will the burden of proof was on the proponents to prove its due execution and that the testatrix had the testamentary capacity to understand and make the will or that the testatrix was a free agent. Sheehan v. Kearney, 82 Miss. 688 , 21 So. 41. The will was not signed by the testatrix or by some other person in her presence and by her express direction. Sheehan v. Kearney, supra; Code of 1942, Sec. 657, Code of 1930, Sec. 3550. The will was not attested in the presence of the testatrix. Tyson v. Utterback, 154 Miss. 381 , 122 So. 496 , 499; Code of 1942, Sec. 657, Code of 1930, Sec. 3550. The execution of the will was not proved by the subscribing witnesses, one of whom was available. Tyson v. Utterback, supra. Ellen Watts on June 14, 1941, was not of sound and disposing mind and memory and capable of executing a will. M. Ney Williams and John Bell Williams, both of Raymond, for appellee. It is the contention of the appellee that the instrument of writing purporting to be the last will and testament of Ellen Watts, deceased, is in reality her last will and testament insofar as the parcel of land conveyed by said instrument is concerned. This will was signed by the testatrix in the presence of A.R. Epperson, Sr., and there can be no question that his taking the acknowledgment and attaching his signature thereto was for the purpose of evidencing the fact that he had witnessed the execution of the will by the testatrix. Bolton v. Bolton, 107 Miss. 84 , 64 So. 967. Mr. A.R. Epperson, Sr., who took the acknowledgment on the instrument of writing purporting to be the last will and testament of Ellen Watts, deceased, is a competent and legal subscribing witness to this instrument. We do not see that the fact that the name of "W.W. Downing, Clerk," instead of the signature of A.R. Epperson, Sr., deputy clerk, is appended to the aforementioned instrument is material, and we do not believe that this would eliminate Mr. Epperson as a subscribing witness to this instrument. McCraven's Heirs v. Doe ex dem. McGuire, 23 Miss. (1 Cushm.) 100. Where a person appears before an officer authorized to take acknowledgments to instruments, and solemnly acknowledges the signature to an instrument to be his own, he thereby adopts such signature as his own. And such acknowledgment has the same force, we think, applied to a signature without a mark as to one with a mark. It is different where a person makes this solemn acknowledgment designed to give verity to an instrument being executed by him, from a case where such signature is merely to be proved by witnesses. In such a case the facts are what control, but where a grantor solemnly assured the officer taking an acknowledgment that he signed and delivered the instrument, the public is entitled to rely upon such solemn acknowledgment, and to act upon it, and it can only be avoided for fraud by clearly proved evidence of its having been unlawfully procured, for the presumption is that the certificate of acknowledgment states the truth, which presumption can be overthrown only by evidence so clear and strong and convincing as to exclude all reasonable controversy as to the falsity of the certificate. Simmons v. Dantzler, 152 Miss. 428 , 118 So. 829 . Where the facts show an effort by the testator in good faith to execute a will, there should be no technical and hard rules of construction. Any signature, or mark signed by the testator, or by another in his presence and at his express direction, to the will, as and for his completed signature, and acknowledged and adopted by him as such at the time, in the presence of the subscribing witnesses, is a sufficient signing within the meaning of our statute. It is enough that what he writes is intended for and adopted as his complete signature. Sheehan et al. v. Kearney et al., 82 Miss. 688 , 21 So. 41, 35 L.R.A. 102; Armstrong v. Walton, 105 Miss. 337 , 62 So. 173; Better et al. v. Hirsch et al., 115 Miss. 614 , 76 So. 555. Proof of due execution of will may, if necessary, be made by others than subscribing witnesses, although subscribing witnesses must be produced, if possible. Tyson v. Utterback, 154 Miss. 381 , 122 So. 496 ; Maxwell v. Lake (Miss.), 88 So. 326. The testatrix in this case was of sound and disposing mind and memory and capable of duly and legally executing this instrument.