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Sechrest, &c. vs. Edwards, &c.

made the sole trier, it determines whether the testamentary paper should be admitted to probate or rejected. The circuit court can only enter the mandate, with directions to the county court to make such orders as may be proper and necessary to carry out the judgment of this court. (Rev. Stat., chap. 106, sec. 28; 18 B. Mon., 61.)

7. Though subscribing witness to a will prove that, at the time the instrument was published, the testator was not of sound mind, his capacity may be established by other sufficient evidence. (5 Mon., 199; 2 B. Mon., 79.)

8. See the opinion for a particular statement of the evidence as to the mental eapacity of the testator to make a will; from which, (to some extent conflicting,) it is held that, although the mental capacity of the testator was to some extent impaired by old age and physical infirmities, the facts decidedly preponderate in favor of his testamentary capacity at the time of the publication of the instrument, which is established as his will-there being no sufficient evidence of the existence or exercise of an unlawful influence over the testator to procure its execution. And refer to 2 J. J. Mar., 331; Ib., 340; 2 B. Mon., 74; Ib., 79; 1 Jarman on Wills, 53, 54.

9. Lawful influence, such as arises from legitimate or social relations, must be allowed to produce its natural results even upon last wills and testaments; and there can be no presumption of its unlawful exercise merely from the fact that it may be known to have existed and may to some extent have operated on the testator's mind.

10. A will is not to be condemned on account of inequalities in testamentary dispositions produced by such influence. It is only when it is exerted over the very act of devising-so as to prevent the will from being truly the act of the testator-that the law condemns it as a vicious element of the testamentary act.

JAMES O'HARA, Jr., for appellants, cited Rev. Stat., sec. 5, chap. 106; act of 1797, 2 Stat. Law, 1538; 16 B. Mon., 112; 2 Bouvier's Law Dic., 124; 12 Pet., 151; 3 Bibb, 494; 3 Mar., 144; 1 B. Mon., 115; 3 Wash. C. C., 586; 4 lb., 262; 9 Conn., 102; 1 Litt., 102; Ib., 252; 5 Mon., 200; 2 J. J. Mar., 341; 2 B. Mon., 74; Ib., 79; 7 B. Mon., 196; Ib., 658; 1 Jurman on Wills, 37, 38, 39, 41; 2 Rev. Stat., chap. 106, sec. 36.

W. S. RANKIN, on same side, cited 2 Met., 449; 17 B. Mon., 389-90; 12 Ib., 378; 1 Bay, 335; 3 Mass., 236; lb., 330; 1 Day, 57; 1 Litt., 252; 6 J. J. Mar., 444; 2 Ib., 340.

GARRET DAVIS, on same side.

T. N. & D. W. LINDSEY, for appellees, cited Williams on Executors, (side page,) 34, 35, 36; 5 J. J. Mar., 92; 2 lb., 333; Piatt's Will Mss. opin.

JAS. B. BECK, on same side, cited Reed et ux vs. Creal, Mss. opin., June, 1860; Rev. Stat., sec. 5, chap. 106; Piatt vs. Piatt, Mss. opin; Jarman on Wills, 51; 18 B. Mon., 58.

Sechrest, &c. vs. Edwards, &c.

J. M. COLLINS, on same side, cited Rev. Stat., chap. 106, sec. 2; Piatt's Will Case, Mss. opin.

W. T. SIMMONS, on same side.

JUDGE PETERS DELIVERED THE OPINION OF THE COURT:

By an order of the Grant county court, made at its December term, 1857, a paper, purporting to be the last will and testament of Charles Sechrest, deceased, bearing date the 3d day of November, 1855, was admitted to record.

From that order the present appellees appealed to the Grant circuit court, where an issue of "devisavit vel non" was submitted to a jury, who found said paper not to be the true last will and testament of said Sechrest; and, a judgment having been rendered in said court in conformity to the finding of the jury, Mary Sechrest and others, the chief beneficiaries in said paper, have appealed to this court.

The case has been very fully argued by counsel; and, after having carefully examined and considered it, we will endeavor to state our conclusions upon the points involved, without elaboration.

It is important, first, to determine whether there is sufficient proof of the publication of the instrument according to the forms and solemnities required by law.

Sec. 5, chap. 106, Rev. Statutes, (2 vol. 458,) provides, that "no will shall be valid, unless it is in writing, with the name of the testator subscribed thereto by himself, or by some other person in his presence, and by his direction; and, moreover, if 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 the will with their names in the presence of the testator."

J. J. Henderson and B. N. Carter are the subscribing witnesses to the instrument, and B. N. Carter was the drafts

man..

Henderson proves that he was sent for to go to the house of Mr. Charles Sechrest. Upon his arrival he was conducted into a room, where he found B. N. Carter, with some papers before him on a stand, or table. In a few minutes after he entered

Sechrest, &c. vs. Edwards, &c.

the room Charles Sechrest came in, and Carter, taking the contested paper in his hand, handed it to him, (Henderson,) and said to him, Mr. Sechrest wants you to attest his will. He then asked Sechrest if it was his will? He answered, it was; and "said that was the way he wanted his property divided." That he, (Henderson,) then said he must read the paper first, and Sechrest replied, that was right; and, after having read a clause or two, to satisfy himself that it was a will, he subscribed his name to it as a witness in the presence of Sechrest and Carter. That Carter then told Sechrest to make his mark to it, which he did, and then Carter subscribed his name to it as a witness, in the presence of Sechrest and himself.

In his cross-examination, Henderson stated that, after he had subscribed his name to the paper, "Carter made the old man's mark, and signed it himself;" but that discrepancy is not material, as the objection is made to the time when it was done, and not to the manner or by whom it was done. The foregoing is all the evidence in relation to that particular point, and the question arises, was that a sufficient publication, under the requisitions of the statute supra?

It may be assumed that the name of Sechrest had been written to the paper before Henderson ever saw it, and certainly before he attested it; his name is written out in full upon the paper as copied in this record, and the mark is placed between the christian and surname. Henderson proves the mark was made after he subscribed it as a witness, but does not prove the name was written afterwards; he only proves that his name and Carter's were written after he saw it. So that Sechrest's name must have been subscribed to the paper before he saw it; and, after his name had thus been subscribed to the paper, he acknowledged it to be his will, in the presence of the two witnesses, who subscribed it as such-which was a compliance with the requisitions of the statute-and the placing the mark to it, whether by Sechrest or Carter, was wholly unnecessary.

But, even if the name of Sechrest was subscribed at the time he made his mark, or after Henderson had subscribed his

Sechrest, &c. vs. Edwards, &c.

name as a witness, we apprehend it would have been sufficient.

We are not aware of any adjudication of the question since the adoption of the Revised Statutes; but, in Swift et ux vs. Wiley, (1 B. Mon., 114,) the point was directly before the court, under the statute of 1797 concerning wills, the provision of which in regard to the attestation of wills is the same in import and substance as the section, supra, of the Revised Statutes; and in that case it was held, that it was not material whether the names of the attesting witnesses, or that of the testator, shall have been first subscribed, if the witnesses were present when the testator either wrote his name, or acknowledged it as his signature, and, being called on for that purpose, actually witnessed or attested that fact. Here the witnesses were both present when Sechrest acknowledged the execution of the instrument, and they attested the fact; which must be deemed sufficient.

It is again contended that the judgment of the circuit court is right because the proof does not show that the instrument was ever read to Sechrest; that he was illiterate, and could not read it himself, consequently he could not have known its contents, and it could not therefore be regarded as his will. It is certainly true that a testator ought to know the contents of his will, otherwise it could not be said to be his will. But it seems to us that the evidence of Carter relieves the case of every difficulty on this point; for he states that he had a previous will of Mr. Sechrest, in the handwriting of Lewis Myers, by him when he did the writing, and that Sechrest told him to write the will like that, omitting the lands, as they had been deeded; and he did so. That he would write, read to him, (Sechrest,) and he would approve-obviously meaning that, as he would write a clause, or a paragraph, he would read it to Sechrest, and he approved what was written; and, in that way, the whole instrument, as we are authorized to conclude, was read to him, and he approved it.

Besides, the execution of the instrument by Sechrest, with the requisite solemnities, is presumptive evidence that he knew its contents, and that it conforms to his intentions; and it is in

Sechrest, &c. vs. Edwards, &c.

cumbent upon those who seek to avoid it on the ground that it makes a disposition of his estate of which he at the time was not fully apprised or had no knowledge, to establish the fact aliunde, which in this case has not been done. (Shanks et al vs. Christopher et al., 3 A. K. Mar., 144; 1 Jarman on Wills.)

It is next argued by the counsel for appellees that the law was properly expounded to the jury in the instructions allowed by the circuit judge, and, as the evidence was conflicting upon the issue submitted to them, this court should not disturb their verdict.

What effect, (if any,) is to be given to the verdict of the jury, depends upon the construction to be given to sec. 28, chap. 106, 2 vol. Rev. Stat., 466, conferring jurisdiction on this court in will cases, by which it is provided that, “A writ of error or an appeal shall lie from the county court to the circuit court of the same county, and thence to the court of appeals, from every order admitting a will to record, or rejecting it. The circuit court and court of appeals shall try both law and fact; but the court of appeals shall not hear or adjudge any matter of fact pertaining thereto, other than such as may be certified from the circuit court, &c."

It is very clear, from the unambiguous language of this section, that the court of appeals is made the trier of the facts certified from the circuit court, without reference to, and wholly independent of the finding of the jury; and, by applying the law to the facts, of which the court is made the sole trier, determine whether the testamentary paper should be admitted to probate, or be rejected; and, having determined that matter, the only thing to be done is to have the mandate entered in the circuit court, with directions to the county court to make such orders as may be proper and necessary to carry out the judgment of this court.

This exposition of the enactment, supra, conforms to the opinion of this court in the case of Overton's heirs vs. Overton's ex'r., (18 B. Mon., 61,) and to the inanifest intention of the Legislature.

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