Upchurch v. Upchurch

• Decision Date: 07 July 1855
• Citation: 55 Ky. 102
• Parties: Upchurch <I>vs.</I> Upchurch.
• Court: Kentucky Court of Appeals

55 Ky. 102

Upchurch vs. Upchurch.

Court of Appeals of Kentucky.

July 7, 1855.

APPEAL FROM WAYNE CIRCUIT.

E. L. Vanwinkle for appellant —

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

F. P. Stone, for appellee —

COPYRIGHT MATERIAL OMITTED

J. M. Harlan, on the same side —

COPYRIGHT MATERIAL OMITTED

Judge STITES delivered the opinion of the Court.

On the 18th of July, 1853, a few months before his death, Thomas Upchurch procured his brother Joseph to write his will, and subscribe his name thereto. On the same day, Redman and the two Keetons, Cyrus and Joel, were requested by the testator to subscribe their names as witnesses to said will. The paper was produced by the testator with his name already subscribed, to which he affixed his mark, and it was then acknowledged by him, in the presence of Redman and the Keetons, to be his last will and testament. Redman, thereupon, subscribed his name as a witness, but the other two not being able to read nor write requested Joseph Upchurch, the brother, who was a devisee, and by whom the will had been written, to subscribe their names for them. This he did in their presence, and they acknowledged their names thus written, and adopted the signatures as their own. This all took place at the same time and place, and in the presence of the witnesses and testator, who again acknowledged the will to be his.

After the death of the testator, upon proof of the foregoing facts by the three witnesses, who identified the will and proved the sanity of the testator, the will was admitted to probate by the County Court.

Upon an appeal to the Circuit Court the order admitting the will to probate was reversed, and from that judgment, the devisees have appealed to this court.

This case comes under the operation of the Revised Statutes, chap. 106, sec. 5, 694, and presents for consideration the sufficiency of the publication of the will, and necessarily the mode and sufficiency of the subscription of the names of the witnesses.

The section referred to is a substantial re-enactment of the act of 1797. (Stat. Laws, 1537.) Its requisitions being similar in import and substance, if not so in phraseology, there is not much difficulty in determining that the acknowledgment of a will by the testator, in the presence of the witnesses, though written and his name subscribed by another at another time, was a sufficient publication. This was held a compliance with the statute in Shanks vs. Christopher, 3 Mar. 144, and in Cochran's Will Case, 3 Bibb, 491.

But were the witnesses, whose names were written by another, subscribing witnesses within the meaning and purview of the statute? In the opinion of a majority of this court they were.

The statute demands that the witnesses shall subscribe the will with their names in the presence of the testator.

The same requisition is contained in the statute of 29 Charles 2nd. Yet a literal compliance with its requisitions was not exacted, for it was held that marksmen were sufficient, and that where persons were unable to read or write, their names might be written by others, and marks attached by themselves; and, also, that one witness might hold and guide the hand of another who could not write, 1 Williamson Executors, 79, 3d Am. ed.; and in a note subjoined, on the same page, it is said, that the mark of a witness, though affixed to a wrong surname, was deemed sufficient."

In every adjudication of this court involving the publication and attestation of wills from Cochran's Will Case supra...