Griffith's ex'R. v. Griffith

• Court: Kentucky Court of Appeals
• Writing for the Court: Ewing
• Citation: Griffith's ex'R. v. Griffith, 44 Ky. 511 (Ky. Ct. App. 1845)
• Decision Date: 27 June 1845
• Parties: Griffith's Executor <I>vs</I> Griffith.

44 Ky. 511

Griffith's Executor vs Griffith.

Court of Appeals of Kentucky.

June 27, 1845.

APPEAL FROM THE DAVIESS CIRCUIT.

CHIEF JUSTICE EWING delivered the opinion of the Court.

THIS is an appeal from the Circuit Court, reversing an order of the County Court of Daviess, admitting to record a paper presented for record, as the last will and testament of Caleb Griffith, deceased, by the appellant as his executor. The will is objected to on the ground, that its signature or acknowledgment was not attested by the two witnesses who subscribed their names to the paper, as required by our statute to pass real estate or slaves. We concur in the conclusion to which the Circuit Court arrived, and approve the argument which led to the conclusion. We therefore adopt it as the opinion of this Court, and will not stop to repeat it, except to add, that the statute not only requires a subscription, but the attestation of both of the two witnesses required by the act.

It is not sufficient that they put their names to the paper as witnesses, but they must also attest the signature or acknowledgment of the will by the testator: Powell on Devises, vol. 1st, from 83 to 91 and 642, and notes and authorities cited. It is true, that if the subscription and attestation has been properly made by both, the fact of subscription and attestation, may be proven by one of the subscribing witnesses, or by others, even against the testimony of both of the subscribing witnesses, provided the fact of subscription and attestation by both, shall be satisfactorily made out, as the statute does not require that both of the subscribing witnesses shall prove the subscription and attestation, but merely that both shall subscribe and attest the due execution of the will. Though the fact of attestation by Griffith, one of the subscribing witnesses, is satisfactorily proven by himself, neither he nor Kelly, the other subscribing witness, nor any other, proves the attestation of Kelly to the signature, acknowledgment or other act of the testator, recognizing the paper as his last will and testament. If he was awake and heard the annunciation of Wm. R. Griffith, the other subscribing witness, when Kelly entered the room, "that this was the will of Caleb Griffith, he had signed it as a witness, and he wished him to sign it," and hearing it had tacitly assented to the same, and if such tacit assent might amount to an acknowledgment, yet it is not proven by Griffith or any other witness, that Kelly was apprized of or attested such tacit assent, or that he even knew that he was in the bed, or if in the bed, that he was awake and gave his assent to the act; and Kelly expressly proves that he did not attest the signature or acknowledgment, nor did he know that the testator was awake, nor even that he was in the room, until some short time afterwards he saw him get up out of the bed and go to supper in an adjoining room. We think, therefore, it is clear that the fact of attestation by both of the witnesses, has not been made out, or sustained by either.

The opinion of the Circuit Judge:

"The statute of Kentucky requires, that where a will is not wholly written by the testator, that it should be signed by him, or by some other person in his presence, and by his direction; and...