208 S.W.2d 299 | Ky. Ct. App. | 1947
Affirming.
The sole question presented on this appeal is whether or not the will of T.J. Halley was executed in conformity with KRS
Mr. Halley died a resident of Clark County on Oct. 19, 1945. After disposing of his property, testator concluded his will in this manner:
"In Testimony Whereof, being unable to see well enough to sign my name, because of cataracts, I have requested D.B. Scobee, to sign my name for me, this 14th day of September, 1945.
T.J. x Halley By: D.B. Scobee
We have witnessed D.B. Scobee sign the name of T.J. Halley to this instrument, after hearing the said T.J. Halley request the said D.B. Scobee to do so, and in the presence of the said T.J. Halley and the said D.B. Scobee and of each other, we have heard T.J. Halley acknowledge this instrument as and for his last will and testament, and we have subscribed our names as attesting witnesses in his presence and at his request, and in the presence of each other, this 14th day of September, 1945.
Robert B.S. Ishmael Winchester, Kentucky Gus Aldridge Winchester, Kentucky."
The proof shows that Mr. Russell Grant, a member of the Clark County Bar, was called to Mr. Halley's home in Winchester to write his will. He informed the attorney what disposition he desired to make of his property and that he wanted the instrument witnessed by three friends; D.B. Scobee, Dr. R.B.S. Ishmael and Gus Aldridge. The attorney returned to his office with the information given him by testator, wrote the will and delivered it to Mr. Scobee, as testator had instructed.
Scobee took the will to Halley's home, read it to him and when Halley approved it, Scobee signed testator's name thereto, whereupon Halley made his mark and then Scobee signed his own name to the paper. In describing the execution of the will, Scobee testified: "* *699 * * I asked him if he wanted me to witness this will and he said he did. I signed his mark and I witnessed the will." * * *
"Q. Well, why did you put your name down there? A. Well, I aimed to witness this will.
"Q. And that was your intention? A. Yes, I intended to do it and did do it."
It is expressly provided in KRS
In Love v. Gibbs,
In the instant case, the attesting clause written by the attorney who drafted the will does not show that Scobee signed as a subscribing witness; on the other hand, it indicates he inscribed his name to show that it was he who signed testator's name to the paper. But the attesting clause is not conclusive. It was prepared in advance of the actual signing of the will and in effect was but a direction in writing to the witnesses as to how the will should be executed. The attesting clause cannot overcome the facts which actually happened in the attestation of the will, as testified by the witnesses. The above quoted testimony of Scobee is plain and direct and clearly shows that he signed with the dual intention to serve both as witness and scrivener, as we said in the Love case,
When Scobee left Halley's home after witnessing the will, he took that instrument with him and sent it to Dr. Ishmael by Harry Lisle. The Doctor and Mr. Lisle then took the will to Halley's home where Dr. Ishmael asked Mr. Halley if the paper was his will, to which he replied it was and he wanted the Doctor to witness it. Thereupon, Ishmael signed his name to the paper in the presence of testator as a subscribing witness. Mr. Lisle's testimony fully corroborates that of Dr. Ishmael, and there is no doubt in our minds that the testator acknowledged to Dr. Ishmael the paper was his will, and the Doctor signed his name thereto as a subscribing witness in the presence of testator.
A close reading of the statute (KRS
It was written in Northcutt v. Patterson,
It is the familiar rule that a substantial compliance with the statute will uphold the execution of a will. But where there is a violation of a mandatory provision there is no substantial compliance with KRS
It is not necessary to discuss the question of whether or not Gus Aldridge signed his name as a witness in the presence of testator, since only two attesting witnesses are required by KRS
The judgment is affirmed.