APPEAL from the Circuit Court of Marion County; the Hon. JAMES
E. McMACKIN, JR., Judge, presiding.
MR. JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:
This is an appeal from an order of the circuit court of Marion County denying appellant's, Ruby M. Young's, petition to probate a document purported to be the will of the deceased, Roger C. Young.
The issue before this court is whether or not a document, which does not include an attestation clause, can be admitted to probate when none of the subscribing witnesses are able to testify either that it was signed by the decedent in their presence or that the signature of the decedent was acknowledged at the time they, the witnesses, affixed their signatures to it.
Section 43 of the Probate Act (Ill. Rev. Stat., ch. 3, par. 43), provides that:
"Every will by which any real or personal estate is devised or bequeathed shall be reduced to writing, shall be signed by the testator or by some person in his presence and by his direction, and shall be attested in the presence of the testator by two or more credible witness."
The requirements of the foregoing provisions are circumscribed by section 69 of the Probate Act (Ill. Rev. Stat., ch. 3, par. 69), which provides in part that:
"When each of 2 attesting witnesses to a will testifies before the court (a) that he was present and saw the testator or some person in his presence and by his direction sign the will in the presence of the witness or that the testator acknowledged it to the witness as his act, * * *."
• 1, 2 This court is asked to determine whether or not the requirements contained in the aforementioned provisions of the Probate Act are mandatory. This issue was resolved in the case of In re Will of Lagow, 391 Ill. 72, 62 N.E.2d 469, wherein the supreme court stated that the law then in effect (Ill. Rev. Stat. 1943, ch. 3, par. 194), which is the present section 43 of the Probate Act (Ill. Rev. Stat. 1971, ch. 3, par. 43):
"* * * requires as essential to the execution of a valid will that the testator sign the will in the presence of the attesting witnesses or that he acknowledge it before them as his act and deed. This provision of the statute is mandatory, and while it is not necessary that a testator both sign and acknowledge in the presence of the attesting witnesses, it is indispensable to the will's validity that he execute the same in the witnesses' presence by one or the other of such methods." (391 Ill. at 78.)
The court further stated:
"Courts are not authorized to dispense with any of the formalities which the legislature has prescribed for the execution of a valid will. No method of executing a will, other than that provided by statute, can be adopted, although in the opinion of the court it would be just as effective as that provided by the statute." (391 Ill. at 79.)
In view of the foregoing this court concludes that the requirements embraced in section 43 and section 69 of the Probate Act are mandatory.
The instrument presented for probate was typed on the letterhead of "Roger C. Young, Real Estate Broker, 222 North Broadway, Salem, Illinois." After its final provision was typed the word "Signed" followed by the handwritten signature and words "Roger C. Young, Salem, Illinois." This was followed by the typed words "this 16th day of March 1946." To the lower left was the typed word "Witnesses" under which appeared the signatures of Mrs. Walter Atkins, Mr. Howard Hunter and Edgar B. Kagy, in that order. On the petition of the widow Ruby M. Young, who was by the instrument appointed "Administrator without bond," to admit the instrument to probate, those three persons were called to testify.
The first witness, Mrs. Walter Atkins, on direct examination testified that she had seen the document before; that her name was attached thereto and that she signed "as a witness." She further testified in response to the inquiry, "I'll ask you if you remember whether or not Mr. Roger C. Young signed that document?" that "I didn't see him." She further testified that she did not know Mr. Young's signature and answered "Yes" to the inquiry, "The only thing you recall is you have seen that document and that's your signature?" She was never asked whether the instrument bore Mr. Young's signature at the time she signed it, nor was she asked if Mr. Young acknowledged a signature on the instrument to be his. She was not cross-examined.
The second witness, Mr. Howard Hunter, on direct examination testified that he was acquainted with Mr. Young during his lifetime. His direct examination follows:
"Q. I will hand you a document and ask you to examine it.
Q. Have you ever seen that document before?
A. I signed it over at the funeral home.
Q. I'll ask you who else signed it while you were there?
A. Nobody while I was there. He just brought it in and asked me to sign it. He lived on North Broadway and I was working there at McMackin's Funeral Home and he brought it in and wanted to know if I'd sign it and I said, yes. I signed it and he left and as far as I know he went home.
Q. Did he say that he had signed it?
A. To the best of my knowledge it was signed.
Q. What other names were on there?
A. I don't remember any other names.
Q. Do you know whether or not you were the first to sign as a witness?
A. I can't say whether I was or not but it seems like, to the best of my knowledge, I was."
His cross-examination follows:
"Q. Did Mr. Young ever tell you that was his signature?
A. No. I took it for granted if his signature was on it at the time that it was his because he brought it in for me to sign. I think he said he was leaving on a two weeks trip.
Q. The signature was there when you first saw it.
A. To the best of my knowledge it was. I'm not saying it was or wasn't. I don't really know."
From the fact that his signature did not appear as the first, although he thought he was the first to sign and the fact that he was not positive that Mr. Young had signed the instrument before it was brought to him, we can understand how the trial court who heard and saw the witness would conclude, as did the witness himself, that he didn't "really know" whether Mr. Young's signature appeared on the instrument at the time the witness first saw it, and that the witness's actual knowledge of the events and circumstances surrounding the affixation of his own signature was very limited on the essential points.
The third witness, Edgar Kagy, after identifying himself by name was asked and answered on direct examination as follows:
"Q. I'll hand you this document and ask you who did you see sign that document?
A. I didn't see anybody only Roger Young.
Q. Did you see Roger Young sign the ...