Falker's Will

18 Ky. 83, 2 T.B. Mon. 83, 1825 Ky. LEXIS 38

• Court: Court of Appeals of Kentucky
• Decided: June 15, 1825
• Status: Published

Opinion

Judge Trimble

delivered the opinion.of the Courti

A writing purporting to be the last will and. testa* ment of Mary Falk.er, was produced in the county court of Bullitt, in which she last resided,.and offered for pro-bat, by William Welch, j'un. one of the devisees. Another man of the name of William Welch and John Huston, appeared in court and opposed, the admission of the. will to record.

Upon hearing the testimony of the- subscribing- witnesses, the court were of opinion that the proof was insufficient to establish the will, and refused to permit it to be recorded. Welch, the devisee, has appealed to this court, and the question presented for our determination, is, whether the proof is sufficient to establish the will.

One of the-subscribing witnesses proves that he- wrote the will pursuant to the instructions of the testatrix, and then read it over to her; that she was sick, but her mind was unimpaired, and; that she-recovered-ot her illness, and afterwards lived for nearly a year;-that he signed her name to the will in her presence and by her directions, and in the presence of the other subscribing witness, and attested it by subscribing his name thereto, jn her presence. The other subscribing witness states,. that be does not recollect whether the will was signed in his presence or not; but that the testatrix acknowledged it in his presence, and that he attested it; by subscribing his name thereto, in her presence and at her request; that at the time of the acknowledgment and attestation of the will, she was sick, but her mind was unirnpaircd-

To prove a will devising lands, eyi-subscribing witness, that tStator’s tllC name and subscribed his ness at her" request and inthepre-S<nd!enother subscribing1 witness, and by the other he^eard^er acknowledge it, and sub-witnessat her request, and in hcrpre-cient’1SSU6' 1 " l.'iiwinii,, Sharp, for appellant.

As the will contains some devises of lands, tfyp suffi-Piency °f the proof must be tested by the act of assembly concerning wills. The first section of that act requires that a will in which lands are devised, shall be s‘§ne<^ by the testator or testatrix, or by. some person in bis or her presence, and by his or her directions, and moreover, if not wholly written by himself or herself, be altested by two or more competent witnesses, subscribing their names in.his or hpr presence, 2 Dig. L. K. 1242.

In this case the will was signed in the presence of the testatrix and by her directions, and although but one of the witnesses proves the signing of the will, the other, proves that it was acknowledged before him by thetes-tatrix, and they both prove that it was attested by them, anc^ that they subscribed (heir- names thereto in her pre-sonce. This is certainly sufficient proof of the execu-"*on under the act of assembly; and, conse-queutly, the county court erred in Refusing to admit it to record.

It is, therefore, considered by the court, that the order of the county court rejecting the proba t of the said last will and testament of Mary Falker, deceased, be reversed; that ithe said will and testament be here recorded a? fully proved, and the original transmitted to the county court of Bullitt, to be there admitted to record, as fully proved in this court, and that such other proceedings be had thereon as the law directs in like cases. The appellant must recover his costs in this court.