The record-union., 1895-12-13
TIE SUPREME COURT Was DIVIDED.
Three of Its Justices Dissent From an
Opinion.
An Important VIII Case, Involving
Some Nice Distinctions
of Law.

The Supreme Court has decided a will
case that has excited great interest
among the lawyers of this State. JUS
] tice Henshaw delivered the opinion and
Chief Justice Beatty and Justices Har-
rison and Temple concurring, while
Justices Mcfarland, Garoutte and Van
Fleet dissent
The case was entitled Estate of
Ozias Walker, deceased. Petition of
Lydia A. Lane to revoke probate of the
will, Oliver H. Walker, appellant"
The facts disclosed by the evidence
were as follows: The will of Ozais
Walker was written by c. G. Warren,
his attorney, and was executed in the
presence of H. C. White and c. G. War
rem, who were requested by the tes-
tator to attest, as witnesses, its execu-
ton. The requirements of the statute
were complied with in all respects, eX-
cept that the witness, C. G. Warren, in
signing his name as a witness at the
end of the will, inadvertently wrote c.
G. Walker.
| Upon this showing the court revoked
| the probate Of the will and the propriety
of its action in SO doing was the sole
question presented upon the appeal.
The decision says that at the outset it
is proper to say that the right to make
testimentary disposition of property is
not an inherent right, or right of
citizenship, nor is it even a right
granted by the Constitution. 1t rests
wholly upon the legislative will and is
derived entirely from the statutes.
In comforting that right the Legisla-
ture has seen fit to prescribe certain
eXactiOns and requirements, looking to
| Of +1ae
| instrument, and a compliance with
| these requirements becomes necessary
| for its exercise. The Legislature of
this State has required that will be
subscribed at the end by the testator or
someone in his presence and by his di-
rection; the subscription must be made
| in the presence of the atteSting witness
es, or acknowledged by the testator to
them to have been made by him or by
| his authority.
! The testator must at the time of sub
scribing or acknowledging the will de-
| clare to the attesting witnesses that the
instrument is his will, and there must
be two attesting witnesses, each Of
whom must sign his name as a witness
at the end of the will, at the testator' S
request and in his presence.
The opinion cites a long line of Eng
| lish decisions to the effect that a mark
made by either testator or witness to
represent his name is a compliance
with the law, but says that our statute
being explicit, these decisions have no
weight.
The judgment of the lower court is
therefore confirmed.
| Justice Mcfarland dissents, saying
that the signature of Warren in this
case, as shown beyond question, would
stand good if any written instrument
| or paper known TO the law were in
volved other than a will, and he sees no
| good reason why the rule should not
apply here. To allow will to be de-
feated by the careless or intentional
misspelling of name by a subscribing
witness would, he thinks, lead to great
abuses.
Justice Garoutte does not think a
mans testamentary disposition of his
property should be defeated for the
reasons given. While the right to dis
pose of property by will is purely
statutory, still it can hardly be said to
be a mere matter of legislative grace
for it has become almost an inalienable
right, made so by reason of its long
practice and approval by all civilized
nations. He is satisfied that the Legis-
lature never intended that such results
should follow.
Justice Van Fleet also dissents, and
| agrees with Justices Mcfarland and
Garoutte. He thinks that by too close
adherence to the letter of the statute
! the court in the main opinion loses
sight of the evident purpose intended
| to be subserved by the provision in
| question.
He thinks the record shows a suffi-
cient compliance with the requirements
OF the statute, and that the deceased
| should not by any such slight lapse as
is here disclosed be deprived of the
time honored right of testamentary dis
position of his property.
The witness Warren evidently in
tended to sign his own name, when he
inadvertently wrote that of Walker,
and that the testator has so far COM
piled with the statute as to make his
| purpose effectual He therefore thinks
the decision should be reversed.