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[edit] WILLMadison Co. KY Will Book C pg. 85 Will of DAVID CHRISTOPHER In the name of God Amen - I DAVID CHRISTOPHER of the County of Madison and State of Kentucky at this time weak of body but of sound mind and memory thanks to almighty God for the Same. I do hereby constitute and ordain this my last will and Testament revoking all others which are as followeth to wit First all my Just Debts to be paid out of my Estate by my Executors that I shall hereafter appoint in this my last Will. Second my will and desire is that my wife SALLY CHRISTOPHER to have to hold all my Estate both real and personal duuring her natural life then upon the decease of my wife, my will and desire is that my Estate be divided as followeth to wit: I do give and bequeath to my son James Christopher a negro fellow called by the name of Lewis, also a negro Woman by the name of Moriah and her child called Jinney - to the said James Christopher and his heirs forever. I do likewise give unto my son John Christopher a negro fellow called and known by the name of John - I also do give and bequeath unto my son Ambrose Christopher a negro woman by the name of Dinah and all the land whereon I now live to him the said Ambrose Christopher and his heirs forever. I do also give unto my Daughter Sally Butler a negro fellow called and known by the name of (sic) Frank and also a negro girl by the name of Rilda, also I do give unto my Daughter Rachel Searcy a negro fellow by the name of Robbin - lastly I do give and bequeath to my three Daughters POLLY SHANKS, Betsy Kimbal and Rachel Searcy all my personal Estate to be sold and equally divided between them to them and their heirs forever. I do hereby ordain and appoint Ambrose Christopher and Thomas Butler Executors of this my last will and Testament. In witness whereof I have hereunto set my hand and affixed by seal this the first day of the year of our Lord one thousand eight hundred and eighteen. his mark David X Christopher mark Richard Oldham Thomas Tevis Robert Million Proved 1 May 1820 Madison Co Court [edit] Estate Contested, Record ofOriginal handwritten record transcribed by Lynette Jester 12/15/2016 (our thanks to her) At a County Court held for Madison County on Monday the 5th day of February 1820. Present the worshipful Robert Caldwell, John Hawkins, James Dya*mitt, Thomas Francis, and Robert A. Kentucky State Court of Appeals Dec 11, 1820 John Shanks and Polly his wife, Duke Kimbal } and Betsy his wife, Horald? Searcy and Rachel } Plaintiffs Upon a writ of error to his wife } reverse an order of the Madison County against Court Ambrose Christopher, James Christopher, John Christopher, } and Thomas Buttler and Sally his wife, and the said Ambrose } Defendants Christopher Executor of David Christopher, decd. }
This is a writ of error to an order to record an instrument of writing purporting to be the last will and testament of David Christopher Decd. Two of the subscribing witnesses disposed that they had at the request of the Testator attested the instrument in question by subscribing their names thereto in his presence, and that at the time of their attestation he was of sound mind and acknowledged the instrument to be his will, the name of the Testator is signed is signed to the instrument in question with the mark of a cross between the Christian and surname and it was admitted on the part of the Defendants in error that he could neither write nor read writing, and neither of the subscribing witnesses read or heard the instrument read to the Testator-- and of the subscribing witnesses testified that he thought there were some likeness between the signature of the name if the Testator and the hand writing of the witness, but he had no recollection of having signed it and though his mind had occasionally ositatia? (visition?) upon the subject he was at this time inclined to believe that the signature was not in his hand writing. It appeared that the Testator had manifested some care in the [page 125] selecton of the witnesses to attest his will and that the subscribing witnesses were now of unexecptionable charactors and respectability standing in society. And it was abundantly proved that the dispositions made of the testators estate by the instrument in question were in strict accordance with his settled and unvaried intention as winced not only by his reiterated declarations upon the subject but by a former will containing the same disposition of his estate except the land which was afterwards acquired_ an this state of facts the council for the plaintiff in error contended that the instrument in question ought to be admitted to record as the will of the testator, 1st because it does not appear to have been read to the Testator and 2nd because it was not proven to have been signed to have been signed by the Testator himself or by any other person in his presence and by his direction. 1st the first of these positions is evidently untenable, it is well known that the power of disposing of land by will did not extend at common law and that this power was given by the Statute of Henry the 8th, usually called the Statute of Wills to make a good will under that statute , no other solemnities was necessary that that it should be in writing, neither the signature of the Testator nor the attestation of witnesses was necessary and it was clearly settled that if it was written from the mouth of the Testator and by his direction, though it would be a valid Will Roberts and Franas? 305, such was the law when the dd? concerning wills, the distribution of intestates estates and passed in Virginia and which was since continued by adoption and reenactment of that state, that act regarding? to render a will of factual to pass real estate that it should be signed by the Testator or Testatrix or by some other persons in his or her presence and by his or her direction and moreover if not wholly written by him or herself be attested by two or more competent witnesses, subscribing their names in his or her presence, this provision, though it requiring the signature of the Testator and this attestation of witnesses does not require that the will should be read to the Testator, the law in this respect must therefore remain as it was before the instrument of this provision and as under the Statute of Henry the Eighth was unnecessary to render a will valid that it should have been read to the testator, it results as a necessary consequence that it is still unnecessary that a Testator aught to *enpro the contents of the will, there can be no doubt, for otherwise it would not be his will but the Execution of it by a Testator the requisite solemnities does of its self-create a presumption of his knowledge of its contents and that they conform to his intentions. curicue marks_____ page 126 February Term 1821 It must therefore be in court and upon those who seek to avoid the Will on the ground that it contains a dispo[r?]tion of the Testator's Estate inconsistently with his intentions or of which he has no knowledge to establish the facts by proof *abundi* the instrument itself but so far as these is from being any proof of such fact in this case that at the circumstances of the case conduce to evince in the contrary. 2nd The second position relied on for the plaintiff in error though more plausible is not more solid, Join undoubtedly true that a Will to be valid must be signed by the Testator or some person in his presence and by his direction, but it cannot be conceded in this case. there is no competent proof of the fact by adverting to this provision before re*ted from the act concerning Wills_ It will be perceived that altho it is required that the attesting witnesses should subscribe their names in the presence of the Testator it is not required that the signature of the Testator should be made in the presence of the subscribing witnesses. It is presumable therefore that the signature did not intend to require that the subscribing witnesses should see the signature affixed to the will and if so other evidence of the fact must be admissible for it would be absurd to suppose that the signature was made in due form but had at the same time made it an indispensable requisite that they should testify that they had seen the signature so made and it would be still more absurd if the legislature has not required such testimony to suppose it was their intention that no other testimony evidence of the fact should be admitted upon principles, therefore we conceive other evidence than that of the subscribing witnesses having seen the signature affixed to the will must be admissible and we can imagine none more competent nor more satisfactory then the acknowledgment of the testator of the will with his signature annexed, to which in this case the subscribing witnesses have testified to proof of such acknowledgement may accordingly long since been settled by the English courts to be sufficient evidence of the signature of the testator having been made in due form under the statute against frauds and perjuries which requires the same formality in the signature of the Testator by the act concerning wills &c Roberts and Frauds 388 and the same principles has been recognized by this Court in the case of Cockrans Will 3d Bibli 491- Therefore it is considered by the Court that the order of the County Court of Madison aforesaid admitting to record the will of the said Decd David Christopher is correct and that the same be affirmed that the original Will aforesaid filed herein be remained to that Court which is ordered to be certified to said Court. A Copy *** J B Sweeney DC for Achilles Sneed, CCAP References
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