Soward, &C., v. Soward, &C.

• Decision Date: 17 February 1863
• Citation: 62 Ky. 126
• Parties: Soward, &c., vs. Soward, &c.
• Court: Kentucky Court of Appeals

62 Ky. 126

Soward, &c., vs. Soward, &c.

Court of Appeals of Kentucky.

February 17, 1863.

APPEAL FROM FLEMING CIRCUIT COURT.

H. TAYLOR, for appellants.

STANTON & THROOP, for appellees.

ANDREWS & COX, on same side.

SIMPSON & SCOTT, on same side.

CHIEF JUSTICE DUVALL DELIVERED THE OPINION OF THE COURT:

On the 21st October, 1860, Richard Soward procured one Farrar to draw up a writing to which Soward subscribed his name as his last will. The instrument thus subscribed was written on a sheet of ordinary cap paper, and occupied the first and a little over half of the second page of the sheet, leaving blan the remainder of the sheet. The entire sheet was then folded up by Soward in the form of a letter, so as to inclose the half which contained the writing within the other half, and it was then sealed with wax in the presence of the draftsman. The paper, thus folded and sealed, was afterwards presented by Soward to three persons to be by them witnessed as his will. Those three persons, at his request, wrote their names upon the outside of the sealed paper as witnesses, neither of them, however, seeing or knowing the contents, or being informed concerning the same beyond what Soward himself declared at the time they were requested to attest it. Their names were written on the fourth, or outside page of the sheet, and there were no words accompanying their names to indicate the purpose for which they were written. Soward having died, this paper was admitted to probate as his last will, notwithstanding the opposition of his heirs at law; and upon an appeal to the circuit court, the order of the county court was affirmed. From that decision the heirs at law have appealed.

No question arises as to the mental capacity of the deceased to dispose of his estate by will. Nor does the evidence leave any room to doubt that the paper subscribed by the deceased, as his will, is the same paper on which the three names were subsequently written. So that the only question for us to determine, is, whether the attempted attestation of the paper was effectual under the statute to give it validity as a will.

The fifth section of the chapter on wills (2 Rev. Stat., p. 458) is as follows: "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."

This section embodies the substance of the first section of the statute of wills enacted in 1797, the latter statute being a substantial transcript of that of Charles II. There is this material difference, however, between these statutes: That of 1797, as well as the English statute, required that "such last will and testament be signed by the testator or testatrix," &c. And in the case of Sarah Miles' Will (4 Dana, 1), it was held that "as the Kentucky statute of wills is a substantial transcript of that of Charles II, the British adjudications on the statute of England, prior to its re-enactment here, should be deemed evidence of the effect which our Legislature intended that it should have when adopted; and it seems to have been the well settled judicial doctrine of England, that the writing of the testator's name, by himself, in the body of the will or elsewhere on the same paper, with the design of giving it authenticity, may be such a signing as the statute contemplated, and that the subscription of his name at the bottom is not necessary if it appear that when the will was attested and published there was no intention thus to subscribe the name." It was therefore determined that the name of the testator, although not written by himself nor subscribed to the will, might, if written by another person in any part of the will, and acknowledged in the presence of two subscribing witnesses, be sufficient for devising land.

To remedy the evils resulting from this latitudinous interpretation of the statute, the English statute of 1838 was passed, introducing an important modification of the former law as expounded by the courts. It provides that no will shall be valid unless "it shall be signed at the foot or end thereof by the testator, or by some other person in his presence, and by his direction." Our Legislature, prompted no doubt by the same motives of policy, adopted the same provision in the fifth section of the Revised Statutes above quoted. There is a difference in the verbiage, but none whatever in the meaning, substance, and effect of the two enactments. Our statute, instead of the phrase, "it shall be signed at the foot or end thereof," uses the equivalent words, "with the name of the testator subscribed thereto." There is no difference between the classical, literal, and popular meaning of the word subscribe when used with reference either to the execution or attestation of written instruments. To subscribe a writing, either as obligor or as attesting witness, is to sign the writing beneath or at the end or foot thereof. This is the sense in which the word is used in statutes and by all legal writers, and it is the sense in which it is popularly understood.

It is contended, however, on the part of the appellee that the words subscribe and sign are generally used interchangeably, and mean the same thing. Can it be supposed that if the statutes of Charles II and of 1797 had required a will to be subscribed instead of signed by the testator, the writing of the testator's name in the body of the will would have been held to be a substantial compliance with those statutes? Or can it be supposed that the framers of the Revised Statutes and the Legislature, by substituting the words "with the name of the testator subscribed thereto," in the fifth section supra, for the words "so as such last will and testament be signed by the testator," intended to introduce no change in the mode of executing wills? Can it be doubted that by adopting such change of phraseology the Legislature intended to follow the salutary legislation of England on the same subject, and thereby to remedy the mischief arising from the judicial construction which the former statute had received? We think not.

It is furthermore argued that an additional statute was necessary to effect the desired change in the statute of wills; and that such additional statute is found in the 26th section of the chapter on construction of statutes, which declares, that "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." This section, it is said, was intended to apply and give effect to the fifth section of the chapter on wills, because there was no other instrument but a will that had been decided to be valid when not signed by the party at the end thereof; and, furthermore, that as a subscribing witness is not, strictly speaking, a party to the instrument, the section does not apply to the witness. Hence it is argued, that, in this section, the words signed and subscribed are used as synonymous; and that whilst the testator, being a party...