October 20, 2012

Upchurch v. Upchurch, Wayne, 1855



Upchurch vs. Upchurch.


55 Ky. 102; 1855 Ky. LEXIS 26; 16 B. Mon. 102

July 7, 1855, Decided


DISPOSITION: Reversed and remanded with directions.

COUNSEL: E. L. Vanwinkle for appellant--

The sufficiency of the subscription of the testator and the subscribing witnesses, are the only questions presented in this case for the adjudication of the court. Upon the other points there is no controversy or doubt, and appellant insists that the subscription of the testator and the attesting witnesses are substantially in conformity with the requirements of the statute.

From the testimony it appears that the testator had his will written, and sent for the witnesses, Redman and the two Keetons, and that, while in the full possession of his mental faculties, he made his mark to his signature, at the bottom of the will, in the presence of the witnesses, for the purpose of giving it effect as his last will and testament; and that the witness Redman, at the request of testator, and in his presence, subscribed his own name, in proper person, to the will, as a subscribing witness thereto, and that the other two witnesses, being unable to write, stood over Joseph Upchurch and caused him to write their names at the bottom of the will as subscribing witnesses thereto; that this [**2]  was done in the presence of the testator, and at his request; that these two witnesses, after the writing of their names as subscribing witnesses, acknowledged said signatures as their own in the presence of the testator, and he approved of the same; and further, that some days after the testator caused the names of Moses and Shadrick to be inserted in one clause of the will. (said names having by mistake been omitted by the draftsman.) and after this change was made all of the witnesses were again called in, when the testator again acknowledged the paper as his last will in their presence, and requested them to again acknowledge their signatures as subscribing witnesses, which they did in his presence. &c.

The first question to be disposed of is the sufficiency of the testator's subscription. Our statute requires that the testator's name must be subscribed to the will, and if done by another it must appear that it was done in the presence of the testator, and by his direction; and moreover, that if not wholly written by himself the subscription or will must be acknowledged in the presence of two credible witnesses. Now it may be insisted that the making of a mark by the testator,  [**3]  and his acknowledgment of the signature and will in the presence of the subscribing witnesses, are not sufficient unless it further appears that the name of the testator was subscribed for him in his presence, and by his direction. To this it may be said that the present statute upon the subject of wills is a literal transcript of the act of 1797, upon the same subject, (see Morehead & Brown, 1538.) except that the latter act does not provide expressly that an acknowledgment of the signature or will, by the testator, in the presence of two witnesses, shall be sufficient, which the former act does.

In construing the act of 1797, the Court of Appeals, in the case of Cochran's Will, 3 Bibb, 495, and Shanks vs. Christopher, 3 Marshall, 146, has decided that an acknowledgment, by the testator, of the will or signature, in the presence of the subscribing witness, is a sufficient compliance with the law, without any further proof that the name of the testator was signed to the will in his presence, and by his direction, the acknowledgment being regarded as sufficient evidence of the fact; and this construction of the act of 1797 is incorporated into the body of the present law, thereby [**4]  expressly affirming the principle settled by the court in the above cases. Therefore, the only real changes in the Revised Statutes, upon this subject, are that the will, instead of being signed, must be subscribed, and that the subscription must be that of testator's name. Under the act of 29th Charles 2d, it was decided that the signing of another person's name, at the request of testator, was sufficient, if acknowledged by him--see 1 Williams on Executors, and Greenleaf on Evidence. The object of our late revision, in requiring the name of the testator to be subscribed, was no doubt done to avoid the effect of that construction. It is therefore apparent, from the facts of the case before the court, that the proof of the subscription of the testator's name is amply sufficient, and up to the letter of the law.

The only difficulty in establishing the will arises from the manner in which the witnesses subscribed and attested it.

The statute requires that the witnesses shall subscribe their names to the will in the presence of the testator. The statute of 29th Charles 2d contained a similar provision, and under that statute it was well established that marksmen are sufficient,  [**5]  and that one witness who subscribed might hold and guide the hand of the other, who could neither read nor write--sec1 Williams on Executors, 79, 3d American edition. Now the testimony in this case shows that two of the witnesses could not write, and that they stood over and directed Joseph Upchurch to subscribe their names to the will, as witnesses, which was done in the presence of witnesses and testator, and approved by him, and these acts were by the witnesses adopted as their own; therefore it is insisted, that by the said acts Cyrus and Joel Keeton become subscribing witnesses to the will of Thomas Upchurch to all intents and purposes. It is a well settled rule of law that an agent without a sealed authority cannot bind his principal by deed under seal; yet where the principal stands and directs another to sign his name to a sealed instrument, it becomes the deed of the principal as much so as if the agent had taken hold of, and guided the hand of the principal in the signing of the same, (see Story on Agency, pages 55 and 56, section 51,) where the following language is held: "And this very exception as to instruments under seal has an exception introduced into its generality,  [**6]  for although a person cannot ordinarily sign a deed for, and as the agent of another, without an authority given to him under seal yet this is true only in the absence of the principal; for if the principal is present and verbally or impliedly authorizes the agent to fix his name to the deed, it becomes the deed of the principal, and it is deemed, to all intents and purposes, as binding upon him as if he had personally sealed and executed it. The distinction may seem nice and refined, but it proceeds upon the ground that when the principal is present, the act of signing and sealing is to be deemed his personal act as much as if he held the pen and another person guided his hand, and pressed on the seal."

If then the act in contemplation of law is as much that of the principal as if he held the pen and the agent guided his hand, although the principal never touched the deed or pen his personal presence giving it full effect, was not the subscription of the two Keetons by Joseph Upchurch, they being present and directing the act, as much their act as if Joseph Upchurch had held and guided the hand of each witness in writing their names as subscribing witnesses to the will? But suppose [**7]  it be objected that the cases are not of the the same nature, that the signing of the deed is merely a mechanical act, and that a subscribing witness to a will must not only subscribe, but must attest the will--the one being a mechanical and the other a mental act. To this it may be answered that the mechanical act is done through another, which, in the nature of things, is easily done, but the attestation is done by the witness himself, by an act of the mind. The attestation is complete without any mechanical act and the subscription is also completed because the witnesses were personally present, and directed their names to be signed. Applying the principle in Story on Agency, ante, to the doctrine settled in Williams on Executors, ante, it follows as conclusively as a mathematical demonstration that the will of Thomas Upchurch was witnessed by three subscribing witnesses, and in his presence and at his request.

But another view. The will and subscriptions of the witnesses being made, and afterwards acknowledged by them, are not the acknowledgments, according to the principles of the case of Wiley's will, 1 B. Monroe, 115, sufficient to establish the will, although the rule [**8]  was different in the courts of England? (Sec Williams on Executors, page 77, vol. 1, 3rd edition.)

It has been decided time and again that the object of the law in requiring an attested witness to subscribe the will, is to secure the identification of the paper as the will of the testator, and that a witness who cannot write may subscribe by mark, or having his hand guided by another in writing his name. Now how can it be possible that this object is more satisfactorily accomplished by an ignorant man having his hand guided by another in subscribing his name, than by standing over another and directing him to write his name for him. Would the witness be enabled by the difference of the process to identify the first subscription more readily than the latter? Surely not. If the one is a good subscription, the other must also be good, as the object and policy of the law is as fully subserved in the one case as the other. In this case the paper is identified in a manner that leaves no doubt, by the witnesses Redman and Keeton: the first swearing positively to his signature, the other pointing out the one made for him, and recognizing it upon the trial, &c. Wherefore, appellant thinks [**9]  the will ought to be established.

F. P. Stone, for appellee--.

This case raises the single question, "can a will be established under our statute without the names of two subscribing witnesses having been actually placed and written by themselves, as attesting and subscribing witnesses to the will? In this case the names of two of the witnesses were written by one of the devisees under the will, and no mark was made by either of them but a simple oral acknowledgment, and recognition of the act of subscribing as their act. Does the language of the Revised Statutes give to the subscribing witnesses the power of acting through the agency of another? If the revisers, or the Legislature who adopted it, had so intended, it would have been easy, by the addition of a few words, to have made such intention obvious. In reference to the testator, his power to subscribe by another is expressed. If they had intended that the witnesses might subscribe by another, it is reasonable to suppose it would have been so expressed. The plain literal meaning of the words "who shall subscribe the will with their names," is that they themselves shall actually subscribe or write their names, by an [**10]  actual literal physical writing or marking done by themselves. The maxim that 'that which a man does by another he does by himself,' grew out of the relations living men bear to each other. It is a rule applicable to trade and commerce among men, and does not, and was not intended to apply to anything connected with the making and publication of a will, which does not take effect by delivery as deeds do, but takes effect only upon the death of the testator. The reason why the subscribing witnesses are required to subscribe their own names, or make their own marks in the presence of the testator, is to prevent the fraudulent substitution of another paper instead of the one intended by the testator to be published as his will. It is for the more certain and sure identification of the paper. The law itself has fixed the mode of identification of the paper. It is the actual manual subscribing of the names of the witnesses by themselves, and no authority conferred by them upon another, and no actual oral statement by them as to the general identity of the paper, can be equivalent to the actual subscription by themselves of their own names.

To permit another to sign for them, or one [**11]  to sign for another, or the principal devisee to sign for both, would be to defeat the purpose to be attained by the rule. The case before the court presents, in a most striking manner, the importance of adhering to the rule for the sake of the object of its original formation.

One of the Upchurchs, the principal devisee under the will, wrote the will, wrote the names of the testator, and the names of two of the subscribing witnesses. How easy for him, or any man in such a case, after the testator's death, to substitute a different paper for the one intended by the testator to be his will. Upon examination of the English statutes upon this subject, it will be seen that in relation to the subscription by the attesting witnesses, the language employed does not in its import differ from the language of our Revised Statutes. See Williams on Executors, 1st vol., 3rd American edition, pages 75 to 78, inclusive; see the case of Moore vs. King, referred to on the 79th page, as clearly showing that a mere acknowledgment of subscription by a witness, without an actual signing, is insufficient. See on 78th page the note 1), in which the goods of White are referred to, and where it is said [**12]  directly, "that one witness cannot subscribe for another" If one witness cannot subscribe for another, can a devisee subscribe for the testator and the witnesses.

J. M. Harlan, on the same side--

We have been unable to find any adjudged case which decides the exact question which is presented in this record, which is, whether there is a sufficient legal subscription by a witness to a will, when being unable to read or write he directs a bystander to write his name, and he acknowledges the subscription to be his in the presence of the testator--no mark or sign being made by the witness, and there being no witness to the signature of the witness.

Such a subscription, if allowed to be sufficient, would, in our opinion, defeat the whole policy of the law in reference to the identification of wills. The provision of the law bearing upon this subject is in Revised Statutes, page 694, 5th section. It is there provided that where the will is 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 their names in the presence of the testator. This provision of the [**13]  law is substantially the same as the law in existence previous to the adoption of the Revised Statutes.

The object of this provision of the law was to identify the will clearly, to prevent the fraudulent substitution of a forged will in the place of the real one. Where, therefore, the witness cannot read or write, and another writes his name by his request, it is possible that the provision which requires the witnesses to subscribe their names will be substantially complied with if the witness makes his mark or sign. We grant that a mark is not conclusive evidence to the witness himself, that his name, as subscribed to a will, is put there according to his direction; yet, in the absence of ability to read or write, it is the best evidence which human ingenuity can furnish of the fact.

In this case there is no mark. The names of all of the witnesses except one are wholly written by a devisee under the will. It is true that one of those witnesses was able to point out, on the trial below, which was his name. This he might have done, and no doubt did do, because he remembered that it was written first or second in the list of witnesses. Certainly he did not do so from any knowledge [**14]  of the formation of letters, or because his name, as written always looked in a particular way. Suppose the devisee had written "John Doe," instead of "Joel Keeton," and "Richard Roe," instead of "Cyrus Keeton," and the Keetons had been told by Upchurch that their names had been written would they have known any better? If not, what then does his being able to point it out on the trial amount to? Might not his name have been pointed out to him before trial?

The strict letter of the law requires that the subscribing witnesses shall write their own names. The spirit of the law may admit of a mark where the witness cannot read or write. But does not its letter, and spirit, and reason, and sound policy forbid that both of these safe-guards against imposition and fraud should be overthrown, and a devisee write the will, and write the names of the witness? Any other construction of the law would throw open a wide door for rascality and forgery, and render the identification of wills a task too easily accomplished.

An affirmance is asked. 



 [*102]  The facts of the case are stated in the opinion of the Court. Rep.

 [*111]  Judge STITES [**15]  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, [**16]  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.

 [*112]  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 [**17]  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 down, a substantial rather than a literal compliance with the statute has been demanded; and if its object and intent were reached without  [*113]  a violation of its express language, that is all that has been required.

In Swift and Wife vs. Wiley, 1 Ben. Mon. 117, where the question was as to the time when the subscription should be made,  [**18]  and not as to the manner of subscribing, and in which the proper distinction is taken between a subscription and an attestation, it is said that the object of the statute in requiring a subscription is to insure identity, and prevent the fraudulent substitution of another document.

Here the witnesses did not write their names, but they were written for them, at their request and in their presence, and that of the testator and the other subscribing witnesses, and when thus written adopted by them at the same time. Afterwards on the trial, their names were recognized, and the paper identified by them as the one they had attested in the presence of the testator and other witnesses.

This writing of their names by another under such circumstances should, in our opinion, for every purpose contemplated by the law, be regarded as their own act, as much so as if it had been a deed to which they were subscribed, or as if their hands had been held and guided by another.

It furnishes as much assurance of identity as the making of a mark, which, as already shown, has been deemed sufficient by other courts, under a like statute, and the facts disclosed by the witnesses reasonably preclude the [**19]  possibility of there having been a fraudulent substitution of another paper.

A literal adherence to the words of the statute would operate harshly, and exclude all persons unable to write their names, as witnesses to wills, however worthy of credence. A more liberal construction will as effectually accomplish the ends of the statute, and not violate its language, nor render invalid a paper proved, as we think this is, beyond all reasonable doubt, to be the last will of the testator by the requisite number of witnesses, whose names were subscribed, though by another, in their presence  [*114]  and at their request. In this conclusion, we are supported by direct authority in a case arising under the statutes of Virginia respecting wills, where the same mode of authentication is required. (6th Gratton's Report, 57.)

We are of opinion, therefore, that the Circuit Court erred in reversing the order of the County Court, admitting the will to probate.

The judgment is reversed, and cause remanded, with directions to the court below to affirm the order of the County Court, and for other necessary orders.

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