Limbach v. Bolin

• Decision Date: 15 March 1916
• Citation: 183 S.W. 495,169 Ky. 204
• Parties: LIMBACH ET AL. v. BOLIN ET AL.
• Court: Kentucky Court of Appeals

183 S.W. 495

169 Ky. 204

LIMBACH ET AL. v. BOLIN ET AL.

Court of Appeals of Kentucky.

March 15, 1916

Appeal from Circuit Court, Daviess County.

Proceedings by Alta Bolin and others for the probate of a paper writing as the last will and testament of Louis A. Miller, opposed by Mary Limbach and others. The instrument was admitted to probate in county court, and on appeal to the circuit court the probate was upheld, from which judgment contestants appeal. Reversed, with directions to refuse probate.

Louis I. Igleheart, of Owensboro, and Leo H. Fisher, of Huntingburg, Ind., for appellants.

La Vega Clements and Clements & Clements, all of Owensboro, and R. W Armstrong, of Huntingburg, Ind., for appellees.

THOMAS J.

Louis A. Miller died on July 4, 1913, being at the time a resident of and domiciled in Daviess county. On February 26, 1912, he attempted to execute his will. After his death and on August 18, 1913, the devisees therein (appellees here) presented the paper to the county court of Daviess county for probate, and their motion for that purpose was sustained and the paper probated as the last will and testament of Louis A Miller. From that judgment an appeal was prosecuted to the circuit court, and it, after hearing, approved the judgment of the county court in probating the paper as such will. From the judgment of the circuit court, appellants, who are the collateral heirs and next of kin to L. A. Miller, prosecute this appeal.

The contentions of appellants which were presented for the first time in the circuit court are: That the paper was not executed in substantial compliance with our statute regulating the making of wills, and that the testator was unduly influenced to execute it. On the trial in the circuit court, the second one was abandoned, and there was an agreed stipulation of facts filed by the parties as to how the paper was executed; it constituting all the evidence heard by the circuit court. Upon this point the stipulation shows: That the testator went to the Daviess County Planing Mills carrying with him the paper claimed to be his will, it not being in the handwriting of Miller, and he there requested W. R. Jagoe to witness it as his will, whereupon Jagoe signed his name to the paper. Miller did not subscribe his name to it in the presence of this witness, nor was his name subscribed to it at the time the witness attested it with his signature. The testator took the paper in this condition, without his name being subscribed to it, to another place in Owensboro, where H. N. Robertson was requested by him to witness or attest the paper as his will, which was done by Robertson, and in the presence of this witness the testator subscribed his name to the paper. After this subscription by the testator, no acknowledgment of it was ever made to the witness Jagoe, and he at no time saw the paper with the name of the testator subscribed to it. The question is, do these acts constitute a substantial compliance with our statute upon the subject, it being section 4828, Ky. Statutes, and in language 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 supposed will is not holographic, and, if vitalized at all, it must be by that portion of the section saying, "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," etc. As the testator did not subscribe the paper in the presence of two witnesses, it becomes necessary to still further narrow the inquiry to the meaning of the clause, "or the will acknowledged by him in the presence of at least two credible witnesses."

When the will is not a holographic one, it may receive legal vitality under the statute in one of two ways: One by the testator subscribing it in the presence of the two witnesses, and they attesting it by subscribing their names in his presence; and the other by the testator acknowledging the will in the presence of the two witnesses, who shall attest it by their signatures in his presence. The first one was not followed in this case, and the inquiry is whether the second one was. It will be observed that the paper which the statute requires shall be acknowledged by the testator before the witnesses is "the will."

Great assistance in the solution of the question before us will be rendered by ascertaining the true meaning of the word "will" (the thing to be acknowledged) as used in the statute. Blackstone, in his Commentaries (volume 2, p. 499), defines it as "the legal declaration of a man's intentions which he wills to be performed after his death." This definition is adopted with approval by the author of Amer. & Eng. Ency. of Law (2d Ed.) vol. 30, p. 550, and also by the court in the following cases: Smith v. Bell, 6 Pet. 68, 8 L.Ed. 322; Colton v. Colton, 127 U.S. 309, 8 S.Ct. 1164, 32 L.Ed. 138; Hardenberg v. Ray, 151 U.S. 112, 14 S.Ct. 305, 38 L.Ed. 93; Jackson v. Culpepper, 3 Ga. 569; Robinson v. King, 6 Ga. 547; Langdon v. Astor, 16 N.Y. 49; Clayton v. Liverman, 19 N.C. 558; Price v. Johnson, 90 N.C. 592; Frew v. Clarke, 80 Pa. 178. And by this court in the precise words of Blackstone in the case of Ward v. Ward, 104 Ky. 857, 48 S.W. 411. The definition given by Swinebourne is, "A last will is a lawful disposing of that which any one would have done after death." Swin. pt. 1, §§ 3 and 4. These definitions meet with our approval, as well as having been adopted by this court in the Ward Case, supra.

It will be noticed that a paper, in order to be brought to the full development of a will, must, according to Blackstone, "be a legal declaration," and by Swinebourne's definition, "a lawful disposing," etc., and any paper not possessing the requisites to make it a legal declaration or a lawful disposition would fall short of the definition of a will. All statutes upon the subject of wills, both English and American, require them to be either signed or subscribed by the testator in order to render them valid and effectual for the purpose of disposing of property after death. Under all of them, a paper which is not signed or not subscribed by the testator is wholly ineffectual for any purpose and would not be probated as a will by any court, because it would not be a will.

Why, then, may we ask, could it be a will when not subscribed or signed by the maker for the purpose of attestation or acknowledgment before the witnesses, and yet not be a will unless signed or subscribed by him for the purpose of probate? If the paper constituting the will is a legal declaration or a lawful disposition by the testator, it must be an executed one, which, according to some of the statutes, must be a subscribed one, and, according to others, a signed one. The acknowledgment required by the statute is the recognition by the testator before the attesting witnesses of his subscribed or executed will. Without this execution of the will by the testator's subsequent consent, the paper which the witnesses attest contains only the testator's consent or wish that what is written therein shall control the disposition of his property after his death, and without such consent or wish having the verity required by law, which would not be legal declaration of such consent. It is the legalized consent verified by subscribing his will which the testator acknowledges before the witnesses and which they attest by subscribing their names. In other words, the paper which the testator must acknowledge to the attesting witnesses must, at the time of such acknowledgment, be a completed or finished will so far as the requirements which the statute imposes upon the testator is concerned. This is not done, under our present statutes, until he has subscribed it. The direct question involved here, although determined as herein held by courts from other jurisdictions (Lane v. Lane, 125 Ga. 386, 54 S.E. 90, 114 Am.St.Rep. 207, and notes on page 213, 5 Ann.Cas. 462; Simmons v. Leonard, 91 Tenn. 183, 18 S.W. 280, 30 Am.St.Rep. 875; Chase v. Kittredge, 11 Allen [Mass.] 49, 87 Am.Dec. 687; Reed v. Watson, 27 Ind. 448; Lewis v. Lewis, 11 N.Y. 220; Jauncey v. Thorne, 2 Barb. Ch. [N. Y.] 40, 45 Am.Dec. 432; Tilden v. Tilden, 13 Gray, 110), has not been directly passed on by this court. It has, however, been inferentially upheld in the following cases: Shanks v. Christopher, 3 A. K. Marsh. 144; Sarah Miles' Will, 4 Dana, 1; Swift v. Wiley, 1 B. Mon. 114; Chisholm's Heirs v. Ben Celia, etc., 7 B. Mon. 408; Griffith's Ex'r v. Griffith, 5 B. Mon. 511; Sechrest, etc., v. Edwards, etc., 4 Metc. 163; Allen v. Everett, 12 B. Mon. 371; Soward v. Soward, 1 Duv. 126; Grubbs v. Marshall, 13 S.W. 447, 11 Ky. Law. Rep. 870; Savage v. Bugler, 76 S.W. 361, 25 Ky. Law Rep. 763; McKee, etc., v. McKee's Ex'rs, 155 Ky. 738, 160 S.W. 261.

The requirements of the statute in force at the time of the execution of the wills under consideration by this court in these cases were not in each instance the same. In some of them the law required the will to be signed by the testator and, as this requirement was the same as that required by the earlier English statutes on the subject, the construction of the English courts as to what constituted a signing of the will was followed by this court when similar statutes were under consideration. This construction was to the effect that the will need not be signed by the...