Flood, &C., v. Pragoff, &C.
| Decision Date | 21 November 1881 |
| Citation | 79 Ky. 607 |
| Parties | Flood, &c., v. Pragoff, &c. |
| Court | Kentucky Court of Appeals |
Richard J. Usher, in 1873, executed a will, dividing his property between the parties to this action, none of whom are related to him, and in 1877 he executed a codicil revoking all devises to appellants, and died within about two years thereafter. The will was admitted to probate without objection, but the probate of the codicil was opposed by appellants on the ground of incapacity and undue influence, and from a verdict and judgment against them they appeal.
The codicil reads as follows:
The testimony of the subscribing witnesses, Howard and Deppen, is to the effect that they were called upon, in the office of Pragoff, one of the devisees, to witness the signature of Richard J. Usher to the paper offered as a codicil, and that each of them, at the request of Usher, signed the paper in his presence, and in the presence of Pragoff, Usher having signed his name in their presence previous thereto, and that neither of the deponents saw any writing above the signature of Usher, and that they did not know what preceded the signature, whether it was a will or not, because they say that whatever writing, if any, there may have been, was concealed by the paper being folded down over it, or by reason of its being concealed by a blotter. The subscribing witnesses further state that Usher was of sound mind at the time they subscribed the will. The testimony of Pragoff is that he wrote the codicil at the request of Usher, and that the paper presented is the one signed in his presence by Usher and the attesting witnesses, and was by the witness, after execution, handed to the testator.
Upon the record the following inquiries arise, the consideration of which will sufficiently indicate the objections of counsel for appellants to the ruling of the court below:
First. Is it necessary for a testator to acquaint the witnesses to his will or codicil with the fact that it is a will or codicil?
Second. What is a sufficient signing of a will?
Third. Who are competent to testify on an application to probate a will?
Fourth. Are the instructions given a correct exposition of the law?
In reference to the first and second inquiries, it is proper to consider the following provisions of the General Statutes:
"No will shall be valid unless it is in writing, with the name of the testator subscribed thereto by himself, or by some other person in his presence, and by his direction; and moreover, if not wholly written by the testator, the subscription shall be made or the will acknowledged by him in the presence of at least two credible witnesses, who shall subscribe the will with their names in the presence of the testator." (Sec. 5, chap. 113.)
"When the law requires any writing to be signed by a party thereto, it shall not be deemed to be signed unless the signature be subscribed at the end or close of such writing." (Sec. 26, chap 21.)
As to the attestation, the statute appears to have been literally complied with, but it is contended for appellants that a literal compliance is not enough; that there arises, by necessary implication from the language used, a further requisite to a valid execution, and that is that the subscribing witnesses must know that they are subscribing the will of the person whose signature they attest, or they must be informed by him that it is his will which they subscribe. This, we think, is not required. The legislature has prescribed such formalities as it deemed proper, and we ought not to add to these formalities by construction, especially when the efficacy of the constructive requirement depends solely upon the memory of the subscribing witness. After any considerable lapse of time, the witness who could remember the circumstances connected with his subscription to the paper, so as to be able to state that the person, whose signature he was called to attest, declared that the paper signed was a will, might justly be subjected to the suspicion of fabrication, one of the principal things against which the formalities specifically prescribed were designed to guard. It would be as reasonable to suppose that the legislature intended to require that the subscribing witness should know that the paper was a will by reading it or by having it read to him, something that this court has repeatedly held not essential. (Higdon's Will, 6 J. J. M., 445.)
These rulings show the understanding of the court to be that the attestation is of the genuineness of the signature of the testator, and not of the contents of the paper. If, then, the witness is not required to know the contents of the paper, which could only be known to him by such inspection, what beneficial end is attained by requiring him to state that the testator declared the writing to be his will, or that the signature attested is to his will? But it is insisted that the paper may have been blank, and the writing above the signature thereafter made, in which case there would not be a compliance with the requirements of the statute. Such might be the case as well when the declaration is made that the paper contains a will as when there was no such declaration; for it is not to be supposed that the paper was blank, for in that case the signing would be meaningless, unless the person whose signature is attested contemplates a fraud, which could as well be accomplished by a declaration that there was writing on the paper above the signature, and that the writing was a will. The person making the paper being of sound mind, it is not to be presumed that he is doing a vain or foolish thing in requiring the attestation, or that he contemplates a fraud, so that when the paper is presented for probate, and it appears upon its face to be a will or codicil in regular form, without any marks of alteration or other suspicious indications, the presumption is that the writing was on the paper when signed, and that the testator knew its contents. In such case the burthen is on the contestants to show fraud, incapacity, or undue influence. In fact, it is not ordinarily necessary that the propounders should show, as they did by the attesting witnesses, that the testator was of sound mind, provided the statutory requirements were complied with, and there is nothing in the paper when presented which is irrational or inconsistent. Then the burthen shifts to the contestants. (Milton v. Hunter. 13 Bush, 163.)
It is insisted, however, that the presumption of capacity and volition in the execution of the paper is destroyed by the fact that it appears to...
To continue reading
Request your trial
-
Irvine v. Greenway
...the record before us. The contestant has cited the cases of Hawkins v. Grimes, 13 B. Mon. 257; Milton v. Hunter, 13 Bush, 163; Flood v. Pragoff et al., 79 Ky. 607; Fee et al. v. Taylor et al., 83 Ky. 259; Boone et al. v. Ritchie et al., 53 S.W. 518, 21 Ky. Law Rep. 864; Woodford et al. v. B......
-
Irvine v. Greenway
... ... the cases of Hawkins v. Grimes, 13 B. Mon. 257; ... Milton v. Hunter, 13 Bush, 163; Flood v. Pragoff ... et al., 79 Ky. 607; Fee et al. v. Taylor et ... al., 83 Ky. 259; Boone et al ... thereafter complain of it. The affidavit of one of the jurors ... is offered to show that C. B. Wills, another member of the ... jury, brought this newspaper mentioned above into the jury ... ...
-
Russell v. Tyler
...such contests stand on an equal footing, and that equality can best be obtained by permitting the introduction of such evidence. Flood v. Pragoff, 79 Ky. 607; Murphy v. Murphy, 65 S.W. 165, 23 Ky. Law Rep. 1460; Eichhorn v. Morat, 175 Ky. 80, 193 S.W. 1013; Williams v. Williams, 90 Ky. 28, ......
-
Russell v. Tyler
...such contests stand on an equal footing, and that equality can best be obtained by permitting the introduction of such evidence. Flood v. Pragoff, 79 Ky. 607; v. Murphy, 65 S.W. 165, 23 Ky. Law Rep. 1460; Eichhorn v. Morat, 175 Ky. 80, 193 S.W. 1013; Williams v. Williams, 90 Ky. 28, 13 S.W.......