{
  "id": 1646559,
  "name": "Miller v. Mitchell",
  "name_abbreviation": "Miller v. Mitchell",
  "decision_date": "1955-02-07",
  "docket_number": "5-580",
  "first_page": "585",
  "last_page": "589",
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      "cite": "224 Ark. 585"
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      "cite": "275 S.W.2d 3"
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    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
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    {
      "cite": "207 Ark. 212",
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  "last_updated": "2023-07-14T14:46:52.725032+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "Miller v. Mitchell."
    ],
    "opinions": [
      {
        "text": "J. Seaborn Holt, J.\nAppellee contested the probating of the will of his father, John T. Mitchell, and from a judgment denying its admission to probate, appellant, John F. Miller, brings this appeal.\nJohn T. Mitchell died about January 24, 1954. He executed the will here involved May 1, 1946. Appellee alleged in his protest to the admission of the will to probate that the will was invalid in \u2018 \u2018 that there is-, \u00bf noncompliance with \u00a7 60-105 of the Official Statutes of Arkansas, 1947, in that the signature of John T. Mitchell is by mark and the person who signed the testator\u2019s name has not written his name as a witness to such will and stated that he signed the testator\u2019s name at his request, \u2019 \u2019 that the testator lacked testamentary capacity to make a will and executed it under duress and undue influence.\nAppellant\u2019s answer was a general denial. Upon a trial, the court refused to permit introduction of testimony by either party, but tried the case solely on the will, \u201cproof of will,\u201d the protest of appellee and appellant \u2019s response.\nThe attesting clause of the will was as follows: \u201cIn testimony whereof I do hereunto set my hand and seal and. publish and declare this to be my last and testamentary will, this 1st day of May 1946.\nHis\n\u201cSigned X John T. Mitchell Mark\n\u201cWITNESS: J. H. Smith\nMrs. W. F. Ballard\nBrada M. Bone\n. \u25a0 \u201cWe, as witnesses have this day witnessed the- signature of John T. Mitchell and know that he voluntarily signed this without coercion. This instrument subscribed and sworn to before me this 1st day of April, 1946. (Signed) G-. E. Bone, Notary Public \u2014 My com. expires Mar. 26, 1947,\u201d and \u201cProof of Will \u2014 We, Mrs. W. F. Ballard, and Brada M. Bone, on oath state: We are the subscribing witnesses to the attached written instrument, dated first day of May, 1946, which purports to be the last will of John T. Mitchell, deceased. On the execution date of the instrument the testator, in our presence, signed the instrument at the end thereof, or acknowledged his signature thereto, declared the instrument to be his will, and requested that we attest his execution thereof; whereupon, in the presence of the testator or each of us signed our respective names as attesting witnesses. At the time of execution of the instrument the testator appeared to be eighteen years of age or older, of sound mind, and acting without undue influence, fraud or restraint. DATED this 26 day of March, 1954.\n/s/ Brada M. Bone /s/ Mrs. W. ft. Ballard\n\"STATE OF ARKANSAS'\n\"COUNTY OF IZARD\n\"Subscribed and sworn to before me this 26th day of March, 1954.\n/s/ John E. Miiler\n(SEAL) Clerk of Izard County, Ark.\u201d\nThe judgment contained these recitals: \"The cause proceeded on purported will of the said deceased, proof of same, protest of F. C. Mitchell and the response thereto. . . . That the said will was not duly attested and subscribed to and that the testator signed by his mark and that the person who signed the testator\u2019s name had not written his name as a witness and stated that he had signed the testator\u2019s name at the request of the testator. Wherefore, it is the decree of this court that the will is invalid and should not be admitted to probate as the last will and testament of John T. Mitchell, deceased; and that the protestaht, F. C. Mitchell, have his costs expended.\u201d\nWe hold that the will was valid, properly executed, and that the court erred in denying it to probate.\nIt is conceded that the testator here signed the will by mark, making his mark by his own hand. The testator\u2019s name, \"John T. Mitchell,\u201d was added just to the right of his mark by someone other than the testator, not disclosed by the record. There were three witnesses to the will. Two of these witnesses, as above indicated, executed the \u201cproof of will,\u201d stating that they had signed the will offered to probate as attesting witnesses, at the testator\u2019s request, that the testator had signed the will at the end thereof, in their presence, and declared it to be his last will.\nThe formalities employed in the will\u2019s execution were a substantial, if not a full compliance, with the. requirements of \u00a7\u00a7 60-104 and 60-105, Ark; Stats. 1947, and sufficient. Anthony v. College of the Ozarks, 207 Ark. 212, 180 S. W. 2d 321.\nOur rule is well established that when, as here, the testator signed his will by mark, making the mark himself, properly witnessed, the will is valid. It was not necessary, \u2014 in order to make the will valid \u2014 , that there appear on the will, the attesting signature of the person who wrote the name, \u201cJohn T. Mitchell,\u201d of the testator, for the reason that here the testator signed by mark..\nIn the .early case of IN the Matter of the Will of Cornelius, 14 Ark. 675, wherein the sections of the law there considered, were the same as the s\u00e9ctions now appearing as \u00a7\u00a7 60-104 and 60-105, above, and the same question was presented, this court said: \u201cThe enquiry, then, is whether this is a case within the meaning of the statute, where another person has signed the testator\u2019s name to the will by his direction; or whether the testator, by making his mark, did subscribe the will, so as to dispense with the attesting signature of the person by whom the testator\u2019s name was written. ... It has been uniformly held that a signature of the devisor by making his mark, is good.\u201d Reaffirmed in Guthrie, et al. v. Price, et al., 23 Ark. 396.\nIn 31 A. L. R.; page 682, the annotator says: \u2018 \u2018 The rule is well settled by practically an unbroken line of authorities that a statute requiring a will to be signed or subscribed by the testator is satisfied if the signature is made by the testator\u2019s mark,\u201d and among the many cases cited in support of the rule are our own cases, In the Matter of the Will of Cornelius and Guthrie, et al. v. Price, et al., above. See, also, 68 C. J., page 655, par. 285 and 80 C. J. S., page 1289, \u00a7 4.\n\"While it appears that the will was dated May 1,1946, and attested April 1st, \u2014 a month earlier \u2014 , this would not necessarily invalidate either the will or the attestation. It is undisputed that the will was signed by the testator and, attested by tbe witnesses, on the same date, and therefore, these obviously erroneous dates became immaterial.\nAccordingly, the judgment is reversed and the cause remanded for trial on the other issues raised- by the pleadings.",
        "type": "majority",
        "author": "J. Seaborn Holt, J."
      }
    ],
    "attorneys": [
      "W. E. Billingsley and Chas. F. Cole, for appellant.",
      "W. G. Wiley and Herrn Northcutt, for appellee."
    ],
    "corrections": "",
    "head_matter": "Miller v. Mitchell.\n5-580\n275 S. W. 2d 3\nOpinion delivered February 7, 1955.\nW. E. Billingsley and Chas. F. Cole, for appellant.\nW. G. Wiley and Herrn Northcutt, for appellee."
  },
  "file_name": "0585-01",
  "first_page_order": 607,
  "last_page_order": 611
}