Execution Through Agent
Deeds and Conveyances
Execution of a document through an agent could include execution under a power of attorney or execution at the direction of the principal. The former, which is a situation where the principal gives the agent discretion to act on his or her behalf, is discussed in detail under the section of these notes entitled "Power of Attorney." The latter involves the situation where the principal is in attendance but is unable to execute the instrument due to a physical impediment and directs the agent to act on his or her behalf. Regarding this latter situation, which is the subject of this section of these notes, this is said in R. Powell & P. Rohan, 3 The Law of Property, Matthew Bender (1992), ¶898[e]:
A deed may be executed by an agent who has a properly created agency or power of appointment. The grantor may also adopt the signature of another person as his or her own, even if that signature is a forgery. This ratification may occur if the grantor acknowledges the signature on the deed as being his or her own. (Emphasis added.)
G.L.c. 4, §7 provides that if a 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." But the statute has been interpreted to permit another party to actually execute the instrument on that first party's behalf. Finnegan v. Lucy, 157 Mass 439, 32 N.E. 656 (1892). In this regard, it has been held generally that one can appoint an amanuensis (an agent), and that an instrument signed with the grantor's name in his presence and by his request, though by a stranger, is sufficiently well executed. The Finnegancourt, although noting some exception particularly in connection with the subscribing of oaths under the constitution or with respect to voting privileges, nonetheless cited the general rule:
It was and still is very generally held that when a document is required by the common law or statute to be "signed" by a person, a signature of his name, in his own proper or personal hardwiring is not required.
See also, Omaha Flour Mills Co. v. Santarpio, 240 Mass. 375, 134 N.E. 261 (1922). Of course, proof that the principal has in fact acted through an instrumentality or agent needs to be documented, by affidavit, witness or certificate.
The Governor's Executive Order 455 (03-13)regulating notary publics addresses this questions of the execution of an instrument through an amanuensis and provides as follows in section 5(i):
The notary public may sign the name of a principal who is physically unable to sign or make a mark on a document presented for notarization if:
(1) the principal directs the notary to do so in the presence of 2 witnesses who are unaffected by the document;
(2) the principal does not have the demeanor that causes the notary public to have a compelling doubt about whether the principal knows the consequences of the transaction requiring the notarial act;
(3) in the notary public's judgment, the principal is acting of his or her own free will;
(4) the notary public signs the principal's name in the presence of the principal and the witnesses;
(5) both witnesses sign their own names beside the signature;
(6) the notary public writes below the signature: "Signature affixed by notary public in the presence of (names and addresses of principal and 2 witnesses)"; and
(7) the notary public notarizes the signature through an acknowledgement jurat, or signature witnessing.