Denton, &C. v. Franklin, &C.
| Decision Date | 14 December 1848 |
| Parties | Denton, &c. <I>vs</I> Franklin, &c. |
| Court | Kentucky Court of Appeals |
APPEAL FROM THE HENDERSON CIRCUIT.
A PAPER purporting to be the last will and testament of Edmund Talbot, deceased, bearing date the 27th of February, 1845, was presented to the Henderson County Court for probate, and rejected. The case was taken before the Circuit Court, in the same county, and a trial being had, the judgment of the County Court was reversed, and the will sustained, and ordered to be recorded. From that decision an appeal to this Court has been taken.
Two questions are presented. First, the sufficiency of the testimony as to the execution of the will. Secondly, the capacity of the testator, and whether any undue influence was exercised over his mind in procuring its execution.
1. The testator handed the paper in controversy, already signed, to one of the subscribing witnesses, as his will. Inquired of him how many witnesses were necessary in making a will, and whom he would get to witness it. He was informed by the witness that his brother, and another young man were in an adjoining room, and that they would subscribe it as attesting witnesses. The testator and witness accordingly went into the adjoining room, and finding the two persons alluded to, they were informed by the witness first mentioned, of the desire of the testator that they should subscribe his will as witnesses, which they done, the testator being present, but remaining silent.
The will was not subscribed by the testator in the presence of either of the attesting witnesses. This was not necessary, according to the repeated decisions of this Court; its acknowledgment by the testator in the presence of the attesting witnesses being sufficient.
It is contended, however, that no acknowledgment was made by the testator in the presence of the two last mentioned attesting witnesses. The object the testator had in view, in going to the room where they were, was to have the will witnessed by them. This object was announced to them by another person in his presence, and by his authority. Its effect, therefore, was the same as if the announcement had been made by himself. A request by a testator to witness a paper which he declares at the time to be his will, is substantially an acknowledgment of its execution by him. If the application in this instance to the witnesses to attest the instrument, had been made by the testator himself, no further acknowledgment by him of its execution would...
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