OFFICERS

OF THE

SUPREME COURT.

CLERK,
JONATHAN W. GORDON.

SHERIFF,

JAMES ELDER.

LIBRARIAN,

FREDERICK HEINER.

CASES

ARGUED AND DETERMINED

IN THE

SUPREME COURT OF JUDICATURE

OF THE

STATE OF INDIANA,

AT INDIANAPOLIS, NOVEMBER TERM, 1881, IN THE SIXTY-
SIXTH YEAR OF THE STATE.

No. 8870.

HERBERT v. BERRIER ET AL.

WILL.-Attestation.-The attestation of a will thus, "Signed and sealed in
the presence of," etc., followed by the signatures of two witnesses, is
sufficient in form.
SAME.-Execution.-If one who subscribes a will as an attesting witness is
competent for that purpose, he is a fit person to write the testator's name
thereto at his request.

SAME.-Attesting Witnesses.-Signature.-Proof, in the absence of a contest,
of the genuineness of the signatures of the attesting witnesses, and that
they are dead or non-residents of the State, or can not be found, and that
they attested it at the testator's request, and in his presence, and that one
of them wrote the testator's name at his request, and that the subscribing
witnesses in person wrote their own names in his presence, is sufficient.
SAME.-Testator's Capacity.-Presumption.-Statute Construed.-Express proof
of the capacity of the testator to make a will, and of his freedom from
coercion, when no contest is pending, is not required by the statute, R. S.
1881, section 2587. This, in the absence of proof, is presumed.
SAME.-Competency of Witnesses.-The competency of the attesting witnesses
to a will will be presumed until the contrary is shown.

SAME.-Pleading.-A complaint to overthrow a will, which alleges generally
that "the will has been admitted to probate unlawfully and without
sufficient proof," is too vague and uncertain.

From the Porter Circuit Court.

W. E. Pinney, for appellant.

J. Bradley and J. H. Bradley, for appellees.

Herbert v. Berrier et al.

ELLIOTT, C. J.-This case was tried upon an agreed statement of facts. We extract from the statement such facts as are essential to a proper understanding of the questions presented by this appeal.

On the 3d day of October, 1848, John Berrier, Sen., executed an instrument purporting to be his will. To the instrument is affixed the signature of Berrier, and following it is written, "Signed and sealed in the presence of Alonzo Whitcomb, Esq., Elisha Keith." John Berrier, Sen., died on the 6th day of January, 1872, leaving both real and personal property. On the 6th day of February, 1872, the instrument was produced to the clerk of Porter county, and by him admitted to probate. Proof of the execution of the will was made by the affidavits of Edney L. Whitcomb, Salome Kouts and Perry C. Kouts. The affidavit of Edney L. Whitcomb stated that he was the son of Alonzo Whitcomb, who was a subscribing witness to the will of John Berrier, Sen. ; that the said Alonzo is dead; that the affiant was well acquainted with the subscribing witness' handwriting, and that the signature attached to the will "is the genuine signature of Alonzo Whitcomb." The affidavit of Salome Kouts stated that she nursed Berrier (who was ill at the time the will was executed); that she was present when the will was signed; that Alonzo Whitcomb and Elisha Keith subscribed their names as attesting witnesses at the testator's request, and that the will produced by the proponents was the identical will so signed and attested. Perry C. Kouts states, in his affidavit, that he has made diligent search and enquiries, and can get no information that will enable him to find the residence of Elisha Keith, and that he has reason to believe, and does believe, that Keith is not a resident of the State of Indiana.

A will must be executed in accordance with the law. Upon this point there can not well be two opinions. Patterson v. Ransom, 55 Ind. 402.

Our first work is to ascertain whether the instrument, about which this contest is waged, was executed in conformity to the

Herbert v. Berrier et al.

requirements of the law. The law in force at the time the will was signed provided that no will should be effectual to pass any estate unless it was in writing, and signed by the testator, or some person in his presence, and by his express direction, and subscribed in his presence by two or more competent witnesses. R. S. 1843, p. 491. The law in force at the time of Berrier's death was substantially the same, as to the attestation of a will, as that in force when the will was signed and attested. 2 R. S. 1876, p. 572.

We think the evidence adduced by the proponents at the time the will was offered for probate shows that the signature of Berrier was written to the will upon his express direction. This is a sufficient compliance with the requirement of the law, that the will shall be signed by the testator, or by some one by his direction. It is not necessary that it should be shown that the testator was incapacitated by illness or otherwise from affixing his own name to the instrument. enough if it appears that he directed the person who wrote his name to do it, in execution of his purpose to make a will.

It is

The testator's name may be written by one of the subscribing witnesses. If the person who subscribes as a witness is competent for that purpose, he is a fit person to write the testator's name at his request. Smith v. Harris, 1 Rob. Ec. 262; Robins v. Coryell, 27 Barb. 556. The evidence adduced also shows that the testator expressly acknowledged, in the presence of the subscribing witnesses, the execution of the will, and this is an adoption of the act of the person who signed for him. Haynes v. Haynes, 1 Am. Prob. Rep. 263; Turner v. Cook, 36 Ind. 129.

The attestation is sufficient in form. No precise form is required. It will be sufficient if that adopted shows that the testator's signature was affixed in the presence of the witnesses. There are, indeed, many cases holding that no attestation clause is necessary. 3 Jarman Wills, 5th Am. ed., p. 763, authorities in note.

The proponent of a will is not bound to prove, in the first