
    Stephens v. Stephens et al., Appellants.
    
    Division One,
    June 25, 1895.
    Will: execution: signature. In a proceeding for probate of a will, ■several witnesses testified that the testator presented the paper to the parties whom he had called to witness it and declared it his will; it was signed by a mark, and no witness testified to seeing him affix it; held, that the evidence tended to show an adoption of the mark as testator’s signature.
    
      Appeal from Moniteau Circuit Court. — Hon. D. W. Shackleford, Judge.
    Reversed and remanded.
    
      Moore & Williams for appellant.
    (1) The trial court erred in /'sustaining the demurrer to the evidence; under the statutes of this state, the will was sufficiently proven. R. S. 1889, sec. 8870. The signature of the testator by mark was a good execution of the instrument, both under the statute of wills and the statute of frauds. Calleit v. Callett, 55 Mo. 330; 2 Green. Ev., sec. 674; 1 Green. Ev., see. 272; 1 Woerner, Law of Administration, sec. 39. The will of Bridget Cuilfoyle, 96 Cal. 598. (2) The question in the case at bar, is, does the proof show, or is it sufficient to submit to the triers of the fact to be passed on, as to whether testator did sign the instrument by mark. The evidence is uncontradicted that Col. ¥m. G. Howard (who died before the testator), wrote the will, he also wrote the name Thomas Stephens, at the end of the will and attested the signature with his own name. This is sufficient and conclusive proof, taken in connection with the declaration of testator, to the living witness, that the mark was made by the testator. 1 Green. Ev., sec. 575; Gallagher v. Delargy, 57 Mo. 30; Clark’s Lessee v. Courtney, 5 Pet. 319; Mott v. Dougherty, 1 Johnson’s Cases [2 Ed.], 230, and citations; Kimball v. Davis, 19 Wend. 439; Mitchell v. Johnson, 1 Mood. & Malk. 79. (3) It is not necessary in this state that the testator should sign the will in the presence of the witnesses; it is sufficient that the witnesses attest the will already signed in the presence of the testator. Cravens v. Falconer, 28 Mo. 19; Mays v. Mays, 114 Mo. 536; Grimm v. Tittman, 113 Mo. 56; 2 Green. Ev., sec. 676. (4) The declaration by the testator that the instrument was his will or his request to the witnesses to attest it as his will is sufficient proof of its execution ; no publication is required in this state. See authorities quoted under last point; also: In re will of Comvey, 52 Iowa, 197; Welty v. Welty, 8 Md. 154; Canada’s Appeal, 47 Conn. 46; Loy v. Kennedy, 1 Watts & Ser. 396; Haynes v. Haynes, 33 Ohio St. 598; Webb v. Flemming, 30 Ga. 808; Beane v. Yerby, 12 Grattan, 259; Adams v. Field, 21 Vt. 256; Beach, Law of Wills, sec. 36; Schouler, Wills, secs. 321-325.
    
      Draffen & Williams and James E. Hasell for respondent.
    (1) It was incumbent upon defendants to prove the proper execution and attestation of the paper offered by them as a will. (2) The defendants in the court below assumed the burden of proving the due execution of the will. They can not change front in this court. The case must be tried here upon the same theory upon which defendants submitted it in the court below. Walker v. Owen, 79 Mo. 56; Tomlinson v. Ellison, 104 Mo. 105. (3) The defendants cannot stand upon the proposition, that the mark to the paper is a signing by the testator himself, and that therefore the statutory rule does not apply, that when signed by another, it must be by his direction and in his presence. Walton v. Kendrick, 122 Mo. 504; Catlett v. Catlett, 55 Mo. 330; Northcutt v. Northcutt, 20 Mo. 266. (4) “It will be presumed in the absence of anything to the contrary in the record, that the trial court placed its finding on the correct ground.Sebree v. Patterson, 92 Mo. 451; Hess v. Clark, 11 Mo. App. 492.
   Barclay, J.

This is a proceeding to contest the alleged will of Thomas Stephens, deceased. Plaintiff is a son of Mr. Stephens. The defendants are other children of the deceased, and some grandchildren. The will is in favor of the defendants, the plaintiff receiving only a nominal legacy of $5. It has been admitted to probate in ordinary form, in the probate court of the county.

The grounds of the contest are, in substance, that the testator was not of sound mind at the date of the writing; that the latter was obtained by undue influence, and, generally, that it is not his will.

At the trial the defendants, as proponents of the document, took up the burden of proof. At the close of their testimony the trial judge gave an instruction as follows:

“The court declares the law to be that the burden is upon the defendants to show that the paper writing produced as the will of Thomas Stephens, deceased, was signed by him or someone by his direction in his presence; and in the absence of such proof, the court must find that such paper is not the last will and testament of said deceased.”

The court thereupon entered judgment declaring that the paper was not the will of the deceased. From that judgment defendants appealed after an unsuccessful motion for new trial and the saving of proper exceptions to the rulings of which they complain.

The decision of the appeal turns on the sufficiency of the defendants’ testimony to sustain the affirmative of the issue touching the due execution of the document.

The evidence tended to show that the will was not signed by Thomas Stephens himself, but that his name was in the handwriting of Wm. G. Howard. The signature and attestation are as follows:

“Witness my hand and seal this twelfth day of March, A. D. 1888. his
“Thomas X Stephens.
“Attest: mark.
“William Gr. Howard,
“C. O. D. Carlos,
“J. A. J. Howard,
“J. T. Gray.”

The first of these attesting witnesses was proven to have died before the trial; the others were called as witnesses. All testified to having attested the document as the will of Mr. Stephens, in his presence. Their evidence also goes to establish his soundness of mind when the will was made.

On these points plaintiff now raises no question. The only present controversy is upon the issue whether or not the paper was duly signed by the testator.

The latter declared to several of the witnesses that the paper was his will, on the occasion when he called them together at the office of the first named, Wm. GL Howard. The will and the name of the testator are in the handwriting of that witness. No one testified to seeing Mr. Stephens make his mark. One witness testified that it was his mark; and all agreed that he called them to witness that the paper was his will.

The statutes governing the subject are as follows:

Sec. 8870. “jEvery will shall be in writing, signed by the testator, or by some person, by his direction, in his presence; and shall be attested by two or more competent witnesses subscribing their names to the will in the presence of the testator.”

Sec. 6570. “* * *; sixth, the word‘will” shall include the words ‘testament’ and ‘codicil;’ seventh, the words ‘written’ and ‘in writing,’ and ‘writing word for word,’ shall include printing, lithographing or other mode of representing words and letters, but in all cases where the written signature of any person is required, the proper handwriting of such person, or his mark, shall be intended; * *

The document on its face declares that the cross (between the words “Thomas” and “Stephens”) is “his mark.” His act in presenting the paper in that condition to the witnesses, to be by them attested as his will, tended to show an adoption or recognition of that sign as his mark, which the law, above quoted, permitted him to use in lieu of other signature. Such a mark is, in legal effect, his signature to the document, within the meaning of the statute of wills (section 8870) as construed by the light of section 6570.

We think the defendants’ evidence had a fair tendency to prove a sufficient signing of the document under prior decisions, which relieve us of the necessity of discussing the question as an original one. Cravens v. Faulconer (1859), 28 Mo. 19; Grimm v. Tittman (1892), 113 Mo. 56 (20 S. W. Rep. 664).

See, also, In re Guilfoyle (1892), 96 Cal. 598 (31 Pac. Rep. 553), with note in 22 L. R. A. 370.

The learned trial judge was in error in holding that there was an ‘‘absence of proof” that the paper writing was signed by the testator.

The judgment is reversed and the cause remanded.

Bkace, O. J., and Macfaklane and Robinson, JJ., concur.  