Love v. Gibbs

• Decision Date: 31 May 1938
• Citation: 273 Ky. 775,117 S.W.2d 987
• Parties: LOVE et al. v. GIBBS et al.
• Court: Kentucky Court of Appeals

117 S.W.2d 987

273 Ky. 775

LOVE et al. v. GIBBS et al.

Court of Appeals of Kentucky

May 31, 1938

Appeal from Circuit Court, Laurel County.

Proceeding by Otto Gibbs and others to probate the will of J. R. Gibbs deceased, which was opposed by Laura Love and others. From a judgment of the circuit court upholding a judgment of the county court admitting the will to probate, the contestants appeal.

Affirmed.

H. C Clay & Sons, of London, for appellants.

J Emory Walden, of London, for appellees.

STITES Chief Justice.

This is an appeal from a judgment of the Laurel Circuit Court sustaining the will of J. R. Gibbs, deceased. The only question argued is whether or not the writing in question was executed in conformity with the Statute of Wills, Kentucky Statutes, Section 4828, providing:

"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."

It appears that Mr. Gibbs died a resident of Laurel County in 1932. In May, 1936, his widow produced the paper in question to the Laurel County Court, and it was probated as his will. Thereupon an appeal was prosecuted to the Laurel Circuit Court by several of Mr. Gibbs' children, and the judgment of the County Court was upheld. After making various bequests of his property, testator concluded his will as follows:

"In witness whereof, I have here and too subscribed my mark to name this 4 day of Feb., 1932.

"X J. R. Gibbs by E. J. Cox

"We whose names are here and to subscribed, do hereby certify that J. R. Gibbs, the testator subscribed his mark to name to this instrument in our presence and in the presence of each of us and declared at the same time in our presence and hearing that this instrument was his last will and testament, and we at his request signed our names here and too in his presence as attesting witnesses.

"X J. R. Gibbs

"By E. J. Cox

"X Mart McWhorter"

The proof indicates that Mr. Gibbs went to the home of E. J. Cox, a Justice of the Peace, at East Bernstadt, for the purpose of having his will written. Squire Cox wrote the entire will, including the attestation clause and the signature. Neither Mr. Gibbs nor Mart McWhorter could read or write, and as a consequence Squire Cox subscribed their names, and then Gibbs and McWhorter each made his mark. Both Squire Cox and Mart McWhorter were dead at the time when the will was offered for probate. It does not appear whether or not they both died before the testator. There is positive testimony, however, to sustain the fact that both McWhorter and Gibbs made their marks to the will, as stated above.

Two questions are presented for consideration: (1) Is the unwitnessed mark of McWhorter a sufficient subscription to make him an attesting witness within the meaning of the statute? and (2) did E. J. Cox subscribe the will as an attesting witness or simply as an amanuensis for the testator? We will consider these questions in the order named.

It is argued that the unwitnessed mark of McWhorter is an insufficient subscription because of the provision contained in Subsection 7 of Section 732 of the Civil Code of Practice that: "The words 'signature,' 'subscription' and words of like import, include a mark by, or for, a person who can not write, if his name be subscribed to an instrument and witnessed by a person who, near thereto, writes his own name as a witness." In the case of Maupin v. Berkley, 3 Ky.Law Rep. 617, 11 Ky.Op.487, it was contended that a signature to a note made by mark was insufficient under the Code because not witnessed, but it was held that: "The Civil Code is intended to regulate the practice in civil cases, and it is in reference only to the execution of such instruments as is required to be executed under the provisions of the code that this construction or definition of the word 'signature' can apply." The rule announced in Maupin v. Berkley has been followed in other cases. Meazles v. Martin, 93 Ky. 50, 18 S.W. 1028, 13 Ky.Law Rep. 958; Vanover v. Murphy's Adm'r, 15 S.W. 61, 12 Ky.Law Rep. 733. Compare Terry v. Johnson, 109 Ky. 589, 60 S.W. 300, 22 Ky.Law Rep. 1210; Upchurch v. Upchurch, 55 Ky. 102, 16 B.Mon. 102. In the absence of a statute, a witness may as effectually subscribe his name by mark as by writing his signature in full. Staples v. Bedford Loan & Deposit Bank, 98 Ky.451, 33 S.W. 403, 17 Ky.Law Rep. 1035.

While it was controverted in the trial in the circuit court, it is not here disputed that McWhorter himself placed his mark on the writing. We conclude, therefore, that, so far as McWhorter is concerned, his mark was a sufficient subscription under the requirements of the statute.

The second question, namely, Is E. J. Cox an attesting witness? Presents some difficulty. The general rule is thus stated in Page on Wills, 2d Ed., Vol. I, p. 549, sec. 343:

"One who signs his name to a

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