King v. . Kinsey

Settle, J. The execution of the paper writing, purporting to be the last will and testament of Ivy King, and also of the two codicils, was duly proved by the subscribing witnesses thereto. The objection to the validity of this paper, as a will, is that no one proves that it was ever read over to the testator, who could neither read nor write. "Was this necessary ? This is not an open question, having been fully discussed and decided by this court adversely to the views of the caveators, in the cases of Downey v. Murphy, 1 Dev. & Bat. 82, and Hemphill v. Hemphill, 2 Dev., 291. In the one it is held, “ where the capacity of a testator is perfect, his knowledge of the contents of his will is presumed from the fact of execution.” *264 In the other; “ It is not necessary to the valil execution of the will of a .blind or illiterate person, that it should be read over to him in the presence of the' attesting witnesses. The fact that a will was not read over to the testator, is evidence to be left to the jury of his incapacity or of undue influence, or of fraud. But upon proof of the due execution of a will, the law presumes the testator to have been aware of its contents, and the <m us of proving the contrary is thrown upon him who alleges it.” Not only is this true of wills, but the general proposition is said to be correct, that the execution of every written instrument, by every man having competent intellectual capacity, is evidence in law that he knew its contents, and binds him. In this instance there is nothing in the evidence to rebut this presumption of law. On the contrary there is much to support it. The conversations of the testator, with some of the subscribing witnesses, at the time of executing the two codicils, go far to show that he had a full and perfect knowledge of the contents of the paper, which he published as his will. Per OukiaM. Let this opinion be certified. The judgment ■of the Superior Court is affirmed.