Swift and Wife v. Wiley

• Decision Date: 14 December 1840
• Citation: 40 Ky. 114
• Parties: Swift and wife <I>vs</I> Wiley.
• Court: Kentucky Court of Appeals

40 Ky. 114

Swift and wife vs Wiley.

Court of Appeals of Kentucky.

December 14, 1840.

APPEAL FROM THE LOUISVILLE CHANCERY COURT.

CHIEF JUSTICE ROBERTSON delivered the Opinion of the Court.

A PAPER purporting to be the last will of John Wiley of Missouri, and devising real and personal estate in Kentucky as well as in Missouri, to his brother James Wiley, having been admitted to record in the proper court of probate in the latter state, the appellants, as heirs and distributees of the said John, filed their bill in the Court of Chancery of Louisville, (in which city so much of the real estate in Kentucky lies, as is embraced in the testamentary paper,) charging fraud in the execution, and also denying any publication according to the statute of this state, and therefore, praying for a partition and distribution of the property here, conformably with our local law.

After the institution of this suit, and during its pendency, the testamentary document was recorded in the clerk's office of this Court, according to the provisions of the act of 1820, (Statute Law, 1548.)

James Wiley having, in his answer, denied the material allegations of the bill, the Chancellor, on a final hearing, there being no proof of fraud, decreed an absolute dismission of it; and conceding, as was decided in Sneed vs Ewing and wife, (4 J. J. Mar. 460,) that the real estate in Louisville, (which must pass according to the law of the situs and as to which the Probate Court of Missouri had no jurisdiction,) gave cognizance of this case to the Chancellor — only one question is left for revision by this Court, and that is, whether the evidence proves a publication, according to the law of Kentucky.

The statute of this state of 1797, (Stat. Law, 1537-8,) prescribing the mode of devising real estate, contains the following provision: "so as such last will and testament "be signed by the testator or testatrix, or by some other "person in his or her presence, and by his or her direction; "and moreover, if not wholly written by himself "or herself, be attested by two or more competent witnesses, subscribing their names in his or her presence."

The controverted paper in this case, though not written by the testator, was dictated by him, when he was perfectly rational, in St. Louis, Missouri, during the night immediately preceding his death; was read to and approved by him, and attested by William Shenstone Gardner and William McDonald, who then subscribed their names as witnesses, in his presence and at his request, and, some hours afterwards, was subscribed with the testator's own name, written by himself, and then again attested also by his attending physician, William Beaumont, at his request and in his presence, as well as in that of the said Gardner and McDonald, who, still remaining with him, then again acknowledged their respective signatures as subscribing witnesses.

The transcript of the record from Missouri, shows that the probate there was on the sole testimony of the subscribing witness Gardner, who proved that both McDonald and himself had subscribed their names as witnesses, in the presence and at the request of the testator, but did not state that the name of the testator was not previously subscribed. According to the judicial expositions of our statute, these facts, in the absence of any other, would be sufficient to establish the will, for it is well settled by this Court, 1st, That one subscribing witness alone, may prove the attestation of all who subscribed their names as witnesses, and 2ndly, That proof of the single fact, that the requisite number of witnesses subscribed their names, as such,...