MOMO COLE and MIAMAH COLE, Objectants to Probate of an Instrument Offered as the Last Will and Testament of CHARLES D. COLE, Deceased, Appellants, v. ELLA B. SHARPE,

Nominated therein as Executrix. APPEAL FROM THE MONTHLY AND PROBATE COURT OF MONTSERRADO COUNTY. Argued October 26, 1960. Decided December 16, 1960. 1. Where the purported signature of a testator on an instrument offered for probate as a will is shown to have been forged, probate will be denied. 2. The testimony of interested witnesses may be weighed in the light of their interest. 3. An instrument is not entitled to admission to probate as a will unless it was executed with testamentary intent. 4. Testamentary intent must exist when the instrument is executed, and is ineffective retroactively. 5. Attesting witnesses to a will must subscribe as such in the presence of the testator. 6. No will is admissible to probate unless executed by signature of the testator, or some other person in his presence, at the foot or end thereof ; and such signature must be made or acknowledged by the testator in the presence of two or more witnesses present at the same time. Such witnesses must attest and subscribe to the will in the testator’s presence. On appeal from an order admitting an instrument to probate as a will, order reversed and probate denied. J. C. N. Howard for Association for appellee. appellant. Smallwood Law MR. CHIEF JUSTICE the Court. WILSON delivered the opinion of This is a case veiled in mystery; and even after submission for opinion and decision by both sides, the mystery remains still in the safe-keeping and bosoms of both appellee and appellant. The guide and means by which a solution has been LIBERIAN LAW REPORTS 233 found by this Court are the salient points disclosed by the records wherein are statements of witnesses who testified at the trial. Now to the case. Objections filed in the Monthly and Probate Court of Montserrado County, by Momo Cole and Miamah Cole, representing themselves as the next of kin of the late Charles D. Cole, of Owensgrove in the County of Grand Bassa, to a document which they claimed to be a fraudulent will contrived by Ella B. Sharpe, purported nominated executrix of the said late Charles D. Cole, have brought this case before this Court for review. Pleadings rested in the case upon the filing of the reply by the said objectants, whereupon the case, as the law provides, was transferred to the law division of the Circuit Court of the Sixth Judicial Circuit, Montserrado County to be tried by a jury under the directions of the court. Said case came on for trial in the September, 1958, term, before His Honor, M. M. Perry, then assigned judge of said term of court, and a verdict was entered by the jury in favor of appellee, to which exceptions were entered by appellant and a motion for new trial accordingly filed. This having been denied, final judgment was rendered by the presiding judge, confirming the verdict of the jury declaring said last will and testament genuine, and the probation and registration thereof so decreed. Appellants not being satisfied with said final judgment, registered exceptions and announced an appeal to this Court for a review of the errors complained of as having been committed at the trial. A bill of exceptions consisting of five counts was filed and approved by the judge within the statutory time. The points of exceptions as noted, and which now constitute the complaint before this Court, related in the most part to rulings made by the trial court to objections entered by both sides to questions propounded to the witnesses who testified in said case. It does not appear to us necessary to expend much 234 LIBERIAN LAW REPORTS energy or time in passing upon these objections, because from their nature and the facts sought to be obtained from them they seem not pertinent in establishing the genuineness of the will claimed by appellants to be fraudulently executed ; and this relates to Counts “r” and “2” of said bill of exceptions. The basic rule generally held under statutory as well as common law, which forms the initial guide to determine the legality of the last will and testament of a testator, looks first to the testamentary character of the instrument and its validity in respect to the contents thereof. “Testamentary character, no less than execution in accordance with the requirement of the law, is requisite to the existence of a valid will. An instrument which accomplishes nothing of a testamentary character is not a will, although it may purport to be such an instrument and be executed with all the testamentary formalities. An instrument is testamentary in character when, manifesting the donative intent of the maker, it neither confers nor evidences an intent to confer, upon the donees any property, right or benefit during the life of the maker, has no binding effect during his life, and is recoverable at his pleasure. Each instrument must be individually considered in determining whether it is testamentary in character. The question whether or not a particular writing is testamentary depends on the dispositions which it makes, and not on the form of the instrument, the use of legal or conventional terms, or the name by which it is designated. A recital of a reason or an apparent consideration for the making of an instrument does not destroy its effect on a will.” 57 AM. JUR. 44-45 Wills � 7. “In order to determine whether or not an instrument is a will, it is necessary to ascertain the intent with which it was executed. Whether or not an instrument LIBERIAN LAW REPORTS .235 is testamentary in character depends upon the intention of the maker. Although there are other elements of a valid will, such as testamentary power and capacity, due execution and attestation, absence of undue influence, etc., and a will cannot be established by merely showing that intent to make one, it is the animus testandi that gives an instrument testamentary character. In the absence of a testamentary intent, there can be no will. As stated, an instrument is not entitled to be probated as a will unless it was executed with testamentary intent.” 57 AM. JuR. 45 Wills � 8. “The animus testandi must exist when the instrument is executed or acknowledged. Testamentary intent is never retroactive. It must concur with the writing else it is of no effect.” 57 AM. JuR. 46 Wills � 9. Because our statutes are not sufficiently vocal on these points or prerequisites as recited above, nor is there any statute law in conflict with them, we quote from the decision of this Court in Brown v. Brown, I L.L.R. 14, 15 (1861). ” ‘No will shall be valid, unless it shall be in writing, and executed in manner hereafter mentioned.’ That is to say, ‘It shall be signed at the foot or end thereof by the testator or by some other person in his presence, and by his direction, and such signature shall be made or acknowledged by the testator in the presence of two or more witnesses present at the same time, and such witnesses shall attest and shall subscribe to the will in the presence of the testator, but no form of attestation shall be necessary.’ (t Vict. c. 26.) Wills must be subscribed by the witnesses themselves, and therefore when one of the witnesses, in the presence of the testator, subscribes to the will, first for himself, and then for the other witness, both being present at the same time, the will was registered. “The last will and testament of individuals is im- 236 LIBERIAN LAW REPORTS portant, and it ought, for the good of those who are to be interested, to be intelligent and clear, and without which, the wills of dying persons must prove abortive against long contemptible designs and arrangements.” With the foregoing as a guide in determining the validity of the will, provided under the statutory laws of Liberia and the common law, we will now proceed to make a survey of the evidence produced on both sides, and by that evidence determine which of the two, by preponderance, outweighs the other in establishing whether or not the will in question was legally executed and therefore constitutes a valid will. The evidence discloses that the instrument claimed to be the last will and testament of the said Charles D. Cole, is signed “C. D. Cole,” a manner and style of signing which the said Charles D. Cole never employed during his natural lifetime, since the alleged testator had swollen hands, defective eyes and was physically weak, could not use his limbs, and therefore was not physically capable of signing his name to said will. Since the record does not disclose that testator’s signature was affixed to said will on his request, we assume that appellee maintains that said signature was affixed by the testator himself. Appellee introduced as witness Albert D. Peabody, who testified that he had maintained correspondence with the testator during his lifetime and that he had in his possession, several instruments in writing signed by the said testator wherein he employed the same manner of signing his name as on the will. Unfortunately witness Peabody was not required to produce in court one or more of said instruments for comparison so as to determine whether or not the allegation made by appellants on this score was true. In addition to this was the testimony of Felix Lawrence, who also testified for appellee and stated that he had been in correspondence with the testator, and also had in his possession written documents which carried the signature of said testator, and that among them were LIBERIAN LAW REPORTS 237 some which he signed in the same manner as the signature appearing on the will. The testimony of these two witnesses would have some weight and merit if unrebutted. In the record certified to us it is shown that appellants produced in court nine written instruments, each carrying the signature of the said testator. The purpose of the production of said instruments was to make comparison so as to show that in none of these nine instruments was there any change in the manner of the signing of testator’s name by him during his lifetime. That is to say, “Chas. D. Cole,” and not “C. D. Cole,” as the purported last will and testament shows ; claiming, therefore, that this was evidence of a fraudulent execution of said last will and testament, and that same was neither signed by testator himself nor on his instructions. Nowhere in the record is it shown that appellee made an effort to produce, as did appellants, the documents which the said witnesses Peabody and Lawrence claimed to have had in their possession wherein testator did employ the manner of signing his name as shown on said last will and testament, for the sake of comparison; nor did they disprove the claim of appellants that said nine instruments showed no difference in the form and manner wherein testator signed his name during his lifetime, except in the case of the signature appearing on said last will and testament claimed by appellants to be a forgery. The weight of evidence on this point would seem to preponderate in favor of appellants. Much stress and effort have been made by the appellee to establish the intention by testator to execute a will, because he requested Mr. Hector Harmon to take the appellee to Owensgrove for the purpose of being present at the execution of his will. Witness Hector Harmon admitted having been requested by the testator to take appellee to Owensgrove, but denies that the said testator told him that his reason for wanting appellee at Owens- 238 LIBERIAN LAW REPORTS grove was for her to be present at the making of his will. However, let us grant that this may or could have been testator’s intention when he sent for appellee. Authorities are agreed that a will cannot be established by merely showing an intent to make one; the animus testandi must exist when the instrument is executed. Testamentary intent is never retroactive. It must concur with the writing, else it is of no effect. The next most salient point that has had our consideration in arriving at a decision in this matter is the signing of the will by the testator and the manner in which it was done. The form and manner in which an instrument intended to be a will must be executed is set forth by this Court in Brown v. Brown, supra. And now one of the still unveiled mysteries in this case. Hector Harmon, one of the beneficiaries of this will, and the lawyer who is alleged to have mechanically drawn same, was strongly charged by appellee’s counsel in argument before this Court as having drawn said will, but made an effort, both by his testimony at the trial and otherwise, to defeat it. Questioned from this bench as to why it was thought that witness Harmon would seek to defeat a will from which he would benefit as a beneficiary, and have the estate declared intestate, from which no benefit could accrue to him, not being an heir, direct or collateral, the reason given was that, during the life of testator Cole the said attorney Harmon was by him appointed as his lawful attorney to control and manage his estate; and this under a power of attorney duly executed through the court. This power of attorney was later renewed during the last and critical days of illness of testator Cole, considered by some as intended to survive even after his death. Ethel Cole, a daughter of the said late Charles Cole, as she is classified and acknowledged in said will, was prior to the execution of said will referred to and considered a ward, and not the legal daughter of the said testator. Hence, by her exclusion as the direct heir to the said Charles D. LIBERIAN LAW REPORTS 239 Cole, the collateral heirs, Momo and Miamah Cole, claimed next of kin to Charles D. Cole, and appellants in the case, would succeed to said estate if it were declared intestate. These two persons being illiterate and already under the direct influence and control of the said Hector Harmon, he would more greatly benefit from said estate as an intestate estate than the beneficiary benefit provided under said will. The seeming unreasonableness of this theory is reflected in the following facts : 1. As a lawyer, Hector Harmon, the claimed architect of this will, and a beneficiary thereof, yet the one who is trying to have same defeated, should know that the letters patent or power of attorney executed in his favor by Charles D. Cole could never survive the death of the said Charles D. Cole. 2. Recognizing, as it would seem, the right of inheritance by Ethel Cole, the only named child of Charles D. Cole in said will, the chance of succession to the estate, or any part thereof, of the late Charles D. Cole, by Momo Cole and Miamah Cole, claimed next of kin to the said Charles D. Cole, and appellants in this case immediately disappears, their right of succession as heirs to said estate, if declared an intestate estate, being collateral and not direct; hence this presents no opportunity for Hector Harmon to get any benefit by the will in which he is named as a beneficiary. Why then should Hector Harmon, who is alleged to have written the will in which he made provision for himself as a beneficiary contrive for its defeat, a defeat that would make the estate an intestate estate from which he could not benefit, Ethel Cole not being under his guardianship or control? In this lies the mystery that remains ; and so does grave doubt, as to the genuineness of said will and its execution by testator. We proceed to analyze the testimony of appellee’s witnesses who, in attesting said will, were required to con- 240 LIBERIAN LAW REPORTS form to the provision of our statutes quoted above. Among the said witnesses were George Gaye, Fahnbulleh, Harris and Lewis, who each and all of them testified that the signature, “C. D. Cole,” instead of “Chas. D. Cole,” was not the signature of testator; nor was it known to them of his having ever signed his name as “C. D. Cole” during his lifetime. Notwithstanding the seeming uncertain knowledge and doubt of said will having been signed by testator, in view of the variance in the known way of his having signed his name during his lifetime, as testified to by two of said witnesses, George Gaye and Fahnbulleh, great caution has to be exercised in giving credit and effect to the testimony of a beneficiary who naturally would not be expected to give any testimony that would tend to the defeat of a will from which he or she might benefit. Yet the testimony of such an interested witness may not altogether be excluded. The law which requires that attesting witnesses must subscribe to a will as such attesting witnesses, in the presence of each other, and in that of the testator at the same time, being mandatory could not by us be overlooked or disregarded. The record does not show that this provision of the statutes was strictly followed. We find ourselves therefore without authority to declare that said last will and testament was genuine, and that same was executed in the manner as the law prescribes ; hence proving its validity as genuine has apparently failed, and its legality as a will under provisions of our statutes and the comman law is wanting. The ruling of the court below in proving said will as genuine, and ordering its probation and registration, is hereby reversed ; and the estate of the said Charles D. Cole is hereby declared an intestate estate to be administered in keeping with the law controlling the estate of persons dying without leaving a last will and testament; with costs against appellee. And it is so ordered. Reversed.