{
  "id": 1872678,
  "name": "Malcolm SHAMOON v. Marian S. TOMBRIDGE, Executrix of the ESTATE of Abraham S. SHAMOON",
  "name_abbreviation": "Shamoon v. Tombridge",
  "decision_date": "1987-02-16",
  "docket_number": "86-148",
  "first_page": "222",
  "last_page": "224",
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      "cite": "291 Ark. 222"
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      "cite": "723 S.W.2d 827"
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  "last_updated": "2023-07-14T18:26:32.108459+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Holt, C.J., and Newbern, J., concur.",
      "Holt, C.J., joins in this concurrence."
    ],
    "parties": [
      "Malcolm SHAMOON v. Marian S. TOMBRIDGE, Executrix of the ESTATE of Abraham S. SHAMOON"
    ],
    "opinions": [
      {
        "text": "John I. Purtle, Justice.\nThe trial court admitted the testator\u2019s will to probate. His son, an only child, a minor beneficiary under the will, appeals from that decision on the ground that his father died intestate. We agree with the appellant that the will was erroneously admitted to probate because it does not comply with the Arkansas law.\nThe will in this case was executed on May 31,1985, while the decedent was in the hospital. He died on June 4, 1985. The signatures of two witnesses were affixed to the will. The decedent made an \u201cX\u201d on the line for his signature which then read \u201chis X mark.\u201d Also, a proof of will was executed by the attesting witness and acknowledged by a notary public. The trial court held that the notary public\u2019s signature on the proof of will form amounted to a third signature.\nThe execution of this will is controlled by Ark. Stat. Ann. \u00a7 60-403 (Repl. 1971). This statute specifically requires that the testator, if he signs by mark, must have a witness who signs the document attesting to his mark or if the testator so directs someone else may sign his name for him but in such case the witness must state on the will that the testator\u2019s name was written at the request of the testator. The statute also requires that two attesting witnesses must sign at the end of the instrument.\nWe have interpreted this statute to be mandatory in order to validate a non-holographic will. In Green v. Smith, 236 Ark. 829, 368 S.W.2d 280 (1963), we considered a fact situation almost the same as in the present case. In Green the testator signed by an \u201cX.\u201d Also, he had two attesting witnesses. \u201cWe held sub-section (3) and (5) of this statute to be mandatory in requiring a minimum of three subscribing witnesses to make the will in question valid.\u201d Green at p. 831. We reached the same result in Priolo v. Priolo, 237 Ark. 798, 377 S.W.2d 29 (1964). Since the will did not comply with the Arkansas law, it should not have been admitted to probate.\nReversed and remanded.\nHolt, C.J., and Newbern, J., concur.",
        "type": "majority",
        "author": "John I. Purtle, Justice."
      },
      {
        "text": "David Newbern, Justice,\nconcurring. This case is closer than the majority opinion suggests. Absent evidence of fraud or undue influence, neither of which is even argued here, our tendency has been to relax technical requirements so as to implement the testator\u2019s intent. See, Note, 4 U.A.L.R. L.J. 139 (1981).\nIn Green v. Smith, 236 Ark. 829, 368 S.W.2d 280 (1963), we held that we interpret the provisions of Ark. Stat. Ann. \u00a7 60-403(3) and (5) to be mandatory in requiring a minimum of three subscribing witnesses to make the will in question valid. Quoting Ash v. Morgan, 232 Ark. 602, 339 S.W.2d 309 (1950) we said:\nIt is essential to due execution of a will, that it be signed or subscribed by the number of witnesses required by the law governing the particular will being made, and subscription by fewer renders the transaction a nullity.\nWe stated in addition that parol evidence of the scrivener in that case could not supply the deficiency of the required additional witness\u2019s signature. The will in question had only been signed by two witnesses below the mark of the testator. The case was reversed because the probate judge had admitted the will to probate. We followed Green v. Smith, supra, in Priola v. Priola, 237 Ark. 798, 377 S.W.2d 29 (1964), and Patrick v. Rankin, 256 Ark. 310, 506 S.W.2d 853 (1974). We invalidated the will in Priola v. Priola, supra, where there were only two subscribing witnesses and upheld the will in Patrick v. Rankin, supra, where the mark was witnessed and two others witnessed the will.\nMy only reason for agreeing with the result reached here is that the third signature, that of Jerry Mazzanti, expressly purported to acknowledge only the signature of the other witnesses and not the mark of the decedent. Had he simply placed his name on the will as a witness, I would have agreed with the trial judge.\nHolt, C.J., joins in this concurrence.",
        "type": "concurrence",
        "author": "David Newbern, Justice,"
      }
    ],
    "attorneys": [
      "Gill, Johnson, Gill & Gill, by: Kenneth Johnson, for appellant.",
      "David F. Gillison, Jr., for appellee."
    ],
    "corrections": "",
    "head_matter": "Malcolm SHAMOON v. Marian S. TOMBRIDGE, Executrix of the ESTATE of Abraham S. SHAMOON\n86-148\n723 S.W.2d 827\nSupreme Court of Arkansas\nOpinion delivered February 16, 1987\nGill, Johnson, Gill & Gill, by: Kenneth Johnson, for appellant.\nDavid F. Gillison, Jr., for appellee."
  },
  "file_name": "0222-01",
  "first_page_order": 246,
  "last_page_order": 248
}