Monday, December 02, 2013

Signing with an “X” explicated

"Written'' and "in writing'' are defined in Mass. General Laws, c. 4, § 7, clause 38, to “include printing, engraving, lithographing and any other mode of representing words and letters, but if the written signature of a person is required by law, it shall always be his own handwriting or, if he is unable to write, his mark.” This definition is looked upon as a rule for the construction of statutes, and it is interesting to note that the wording is copied exactly from two earlier codifications. We see this same wording in the General Statutes, c. 3, §  7, cl. 20 (1860) and the Revised Statutes, c. 2, § 6, cl. 19 (1836).

Finnegan v. Lucy, 157 Mass 439, gives a detailed description of how the law came to be, and how it should be interpreted. The case differentiates between situations where a “signed” document is required, and those where a “written signature” is called for. “Signing does not necessarily mean a written signature, as distinguished from a signature by mark, by print, by stamp, or by the hand of another. There is no reason that we can see why a signature in the proper handwriting of the plaintiff should be required...”; “…the ordinary cases of wills, deeds, contracts, notices, demands, and other documents…do[es] not require such formality.”

The Governor’s Revised Executive Order No. 455 (04-04) details how a Notary Public may notarize the signature of someone who signs with a mark in Section 5: “Scope and Description of Duties.” Section 5 (i) lists the requirements for a notary who may sign the name of a principal who is physically unable to sign or make a mark on a document presented for notarization.