¶1concurring in part; dissenting in part. In this case, we are asked to determine whether a will was validly executed. The majority opinion, relying on a case from 1964, which was based upon an untenable interpretation of Ark. Code Ann. § 28-25-103 (1987), concludes that Iola Wharton’s Last Will and Testament was not properly executed. The majority reasons that the will, which was witnessed by three witnesses, was not properly executed because Ms. Wharton’s name was typed on the face of the will prior to the time that Ms. Wharton placed her “X” on the document. I cannot agree with this conclusion and must respectfully dissent.
¶2The majority opinion holds: “|B]ecause this court has held that the person who writes the testator’s name must do so ‘in the presence of two or more attesting witnesses,’ we must conclude that the 1997 will was not executed in compliance with our statute. Priola v. Priola, 237 Ark. At 801, 376 S.W.2d at 31.” In my view, the holding in Priola was that the same person who witnessed the authenticity of the signature mark could not also act as one of the two attesting witnesses. That was not the fact situation in the case now before us. Accordingly, that case is not controlling on the case sub judice.
¶3Not only do I take issue with the majority’s interpretation of the holding in Priola, I must also take issue with Priola’s interpretation of the statutory requirements for execution of a will when the testator chooses to sign the will by marking it with an “X.” In Priola, the court stated:
When we compare §11512 and §11513 of Pope’s Digest (the previous statutes on the mode of executing a will) with §19 of Act No. 140 of 1919 as found in Ark. Stat. Ann. 60-403 (Supp. 1963) (the present statutes on the requirements for executing a will), the correctness of our holding in Green v. Smith, supra, becomes readily apparent. The old statute said in § 11513 Pope’s Digest that the person who wrote the testator’s name “shall write his own name as a witness to such will”; thus recognizing that the same person could write the testator’s name and also be a witness to such will. But the new statute (19 of Act No. 140 of 1949) says in Paragraph (5) that the person who writes the testator’s name must do so “in the presence of two or more attesting witnesses”; and certainly such person who writes the testator’s name cannot be an attesting witness to his own signature. In short, the attesting witness to the testator’s mark cannot also act in the dual capacity of an attesting witness to the will.
¶4Priola, supra.
¶5I do not interpret the relevant statutory provision as requiring that we invalidate a will because the testator’s name was typed prior to the marking of the “X” rather than printed by hand at the time the “X” was marked, and to the extent that Priola stands for that proposition, I would not hesitate to overrule the case on that point as a faulty interpretation of the statute. The “act” to which subsection five of Ark. Code Ann. § 28-25-103 refers is not the printing of the testator’s name by the mark; instead, the “act” refers to the testator’s signature by mark. Clearly the testator’s placement of the “X” on the document is the “act” that must be performed in the presence of two or more witnesses. If Priola holds otherwise, it is not a correct interpretation of the statute, and should be overruled.
¶6In the case now on review, Ms. Wharton’s will was executed pursuant to Ark. Code Ann. § 28-25-103. The statute provides in relevant part:
(a) The execution of a will, other than holographic, must be by the signature of the testator and of at least two (2) witnesses.
(b) The testator shall declare to the attesting witnesses that the instrument is his will and either:
…
(3) Sign by mark, his name being written near it and witnessed by a person who writes his own name as witness to the signature; or
(5) In any of the above cases, the signature must be at the end of the instrument and the act must be done in the presence of two (2) or more attesting witnesses.
(c) The attesting witnesses must sign at the request and in the presence of the testator.
¶7Id.
¶8Without conflicting prior case law on the subject, we must look to the statutory provision of Ark. Code Ann. § 28-25-103 in our determination of whether Ms. Wharton’s will was properly executed. After reviewing the statute and the facts surrounding the case sub judice, I would hold that Ms. Wharton properly executed her will. Ms. Wharton signed the will using an “X.” Her name was typed underneath the “X” by Mary Sainé. Ms. Sainé then signed her name at the bottom of the attestation clause, along with two attesting witnesses, acknowledging that Ms. Wharton’s will was properly executed. Both the testator’s “X” mark and Ms. Saine’s authentication of that mark were done in the presence of the two attesting witnesses who signed an affidavit, stating that the testator affixed her mark, and declared the instrument to be her will and requested the witnesses to sign in her presence.
¶9Nowhere in the statute is there a requirement that the printed name of the testator found under the “X” mark be placed there after the “X” is affixed. Therefore, the fact that Ms. Sainé typed Ms. Wharton’s name on the will prior to Ms. Wharton placing her mark on the will is of no consequence. The will was prepared by Ms. Sainé in one location and brought to Ms. Wharton for execution at a different location. The administrative procedure of typing the will and the name of the testator prior to its execution should not invalidate Ms. Wharton’s will. I would hold that the will complied with the statute and should have been admitted to probate.
¶10We have held that in the interpretation of wills, the paramount principle is that the testator’s intent governs. Estate of Harp v. Harp, 316 Ark. 761, 875 S.W.2d 490 (1994). The result reached by the majority opinion frustrates Ms. Wharton’s intent. Ms. Wharton was under no undue influence when she placed her “X” on the will. Additionally, she was in full possession of her mental facilities at the time the will was signed. There was testimony that Ms. Wharton could read and write, but signed by mark only because of an injury to her arm. Clearly, Ms. Wharton’s intent was that her 1997 will dispose of her estate. Accordingly, I would reverse the trial court and admit her will executed July 29, 1997, to probate.
¶11I respectfully dissent from the portion of the majority’s opinion which holds that Ms. Wharton’s 1997 will was not properly executed. However, I agree with the majority’s disposition of the remaining issues on appeal.