B. Mon. 492; Chapman v. Haley, 117 Ky. 1004, 25 Ky. Law Rep. 2182, 80 S. W. 190 [4 Ann. Cas. 712]; Howe's Ex'r v. Griffin's Adm'r, 126 Ky. 373 [103 S. W. 714, 31 Ky. Law Rep. 784, 128 Am. St. Rep. 296]."

edge of such facts that plaintiff's action in taking them amounted to bad faith, the witness is entirely silent. He was asked and answered these questions:

"Q. Please state what examination you made, if any, before you decided to purchase the notes executed by J. D. Archer? A. We checked up mercial rating of the maker of the notes, and the maker of the notes; we checked up the comwe also checked up the rating of the American Manufacturing Company. Q. After you checkand the American Manufacturing Company, ed up the commercial rating of J. D. Archer what did you then decide to do? A. To pur

This case is on all fours with that one, the doctrine of which we unhesitatingly readopt. Such contracts are not only fraudulent and against public policy, setting at defiance the rules of equity, fairness, and justice which should characterize transactions between man and man, but they go further, and render the participants in the fraudulent scheme almost, if not quite, guilty of obtaining prop-chase the notes. Q. I will ask you to state erty under false pretenses, since the friends whether or not your examination embraced any of the contestants are induced to expend rating of J. D. Archer and the American Manuthing further than ascertaining the commercial their money in purchasing votes under the be- facturing Company? A. It did not." lief that their friend, the candidate, has an actual standing as a probably successful one, when in truth their votes are largely if not entirely fictitious. The crediting of the candidate with such fictitious votes constitutes a pretense by the merchant of the existence of a fact which is wholly untrue. That this method of conducting the contest entered into the contract and became a part of it there can under the proof be no question, so that we again repeat that the Record-Press Case is in harmony with the fundamental principles of the law governing contracts and transactions between men, as announced by all the text-writers upon the subject, and meets with our unqualified approval. So that our conclusion is that defendant successfully sustained the burden which the law cast upon him, and established by his proof that the consideration for the notes sued on was vicious, and sufficiently so to defeat the collection of the notes in the hands of the original holder.

[3] It therefore became necessary under the rule, supra, governing the rights of the parties for plaintiff by its proof to bring itself within the definition of a bona fide holder in due course, as prescribed by subsection 52 of the section, supra, of the Statutes. To do this it was incumbent upon it to prove that the notes were complete and regular upon their face; that it became the holder of them before they became overdue; that it took them in good faith and for value; and that at the time they were negotiated to it plaintiff had no notice of any infirmity in either of the notes, or of any defect in the title of the American Manufacturing Company.

[4] In an effort to discharge that burden defendant took the deposition in Chicago of its president, R. A. Crandall. He testified that he negotiated the transaction resulting in the purchase of the notes; that he purchased them for his company at a discount from the face value of 6 per cent., and paid for them at the time. The notes themselves show that they are regular upon their face, and there is no claim that any of them had ever been previously dishonored. Upon the point as to whether the notes were acquired in good faith, i. e., without actual knowledge of the infirmity or defect, or without knowl

The witness nowhere states that he did not have knowledge of the vice entering into the consideration for the notes above alluded to, but counsel attempts to avoid the omission because of statements made by the American Manufacturing Company in its contract transferring the notes to plaintiff, in which the company among other things guaranteed to plaintiff:

"That there are no contra accounts against any of them [notes]; that the amounts due on said notes * * * are not disputed by the against said notes, damages or other counterdebtor * * and that there are no offsets claims of any nature whatsoever."

But these guaranties were at most but representations made at the time by the seller to the contemplated purchaser. It would have been in perfect accord with good business principles for such a guaranty to be demanded, notwithstanding the prospective purchaser may have had actual knowledge of the infirmity of the paper about to be purchased. Indeed, such a guaranty would most likely have been demanded under such conditions. The fact that the representations were made does not relieve the holder of the burden to show that he purchased the notes under the conditions named in subsection 56 of section 3720b of the Statutes, supra, one of which is that he did not have actual knowledge of the infirmity of the notes. Such actual knowledge is entirely consistent with the representations made in the written transfer; the latter not in the least disproving the former. Holzbog v. Bakrow, 156 Ky. 161, 160 S. W. 792, 50 L. R. A. (N. S.) 1023.

In the MacKenzie Case, supra, referring to the necessity for the holder to show his want of knowledge of the infirmity of the instrument when the burden is cast upon him, the court said:

"Here McKenzie failed to testify that when he purchased the note he had no knowledge of been made by Patterson. From the above evithe fraudulent representations alleged to have dence the chancellor concluded that the note in question was obtained by fraud, and as plaintiff did not rebut the prima facie case made out did not sustain the burden of showing that he by defendant he further held that plaintiff was a holder in due course.'

The holding of the chancellor who tried that case, touching the rule of practice and the proof required of the holder under the conditions, is approved in the opinion, but this court found that the evidence was insufficient to establish fraud in the procurement of the note. The rule is correctly stated if the facts were sufficient to authorize it. 3 R. C. L. 1033, 1034, and cases supra.

Wherefore the judgment upon the appeal, in so far as it dismissed the petition, is affirmed, but in so far as it canceled the unpaid note, it is reversed, and upon the cross-appeal the judgment is affirmed.

REED et al. v. HENDRIX'S EX'R. (Court of Appeals of Kentucky. March 22, 1918.)

CIENCY.

111(3) - SUBSCRIPTION - SUFFI

Ky. St. § 4828, requiring the name of testatrix to be subscribed to will was sufficiently complied with by the subscription, "Nancy Wilson

In the case before us there is no doubt about the establishment of the fraud, and there is but little less doubt about the failure 1. WIL'S of the plaintiff to sustain the burden to prove that it was a purchaser in good faith. The fact that plaintiff paid a consideration for the notes is insufficient of itself to show, under the facts of this record, that it did not have actual knowledge of the fraud entering into the consideration of the notes. 8 Corpus Juris, 506.

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X Whaley," instead of testatrix's correct name, Nancy Wilson Hendrix, where the identity of testatrix, who caused her will to be prepared, and who executed it as her will, was not questioned; the testatrix's maiden name being Nancy Wilson. 2. WILLS 302 (1)-EXECUTION - PRESENCE OF WITNESSES-EVIDENCE.

[5] Complaint is made of the instruction given to the jury, but it in very apt language submitted the issues in the case and is wholly free from error; but, if otherwise, we could Evidence held to show that testatrix did not not reverse the judgment in favor of defend- subscribe a will in presence of attesting witnessant based upon the verdict of the jury, be-es, but did acknowledge it in their presence within Ky. St. § 4828, requiring subscription or accause under the record the court was author-knowledgment in presence of witnesses. ized to sustain the motion for a peremptory 3. WILLS 118 EXECUTION instruction in defendant's favor. We think the testimony is sufficient to show, as was held in the Record-Press Case, supra, that defendant was in pari delicto with the American Manufacturing Company, and therefore not entitled to the relief which he sought by his counterclaim.

MENTS.

REQUIRE

Under Ky. St. § 4828, where testatrix acexecution was complete, although she did not knowledged will in presence of witnesses, the subscribe in presence of the witnesses. 4. WILLS 303(3) — EXECUTION—ACKNOWL

EDGMENT.

Witnesses need not testify to express acknowledgment by testatrix; it being sufficient to show facts that imply an acknowledgment, such as a request by the testatrix that the witness attest the document as her will. 5. WILLS ~302(1) — SUBSCRIPTION DENCE-SUFFICIENCY.

EVI

[6] This is an ordinary action, and was docketed and tried as such, and it was incompetent for the court to undertake to cancel the unpaid note, since such relief can be granted in equity alone, but for the reason Evidence held sufficient in absence of direct stated no such relief should have been grant-proof to show that testatrix's signature was subed had the case been transferred to equity. For the same reason the court did not err in refusing to allow a recovery in favor of the defendant of the $400 paid in extinguishment of two of the notes by declining to instruct the jury on that issue.

[7] It is seriously insisted by plaintiff's counsel that defendant was guilty of laches which would bar him from making the defense herein, but that doctrine applies to the remedy of rescission, reformation, or other equitable relief, and has no application in an ordinary suit to recover on the obligation executed for the purchase price of the article sold where the fraud may be relied on as a complete or pro tanto defense whenever the suit is brought.

Because of the conclusions which we have reached, as hereinbefore expressed, it will be unnecessary to consider the competency of the records of the Logan circuit court introduced by the defendant and objected to by the plaintiff, since the judgment is correct independent of any effect which that proof may have had.

scribed in her presence and at her direction,
as required by Ky. St. § 4828, where name is
not signed by testatrix.
6. WILLS 293(6)-SUBSCRIPTION-PROOF.

Under Ky. St. § 4828, requiring that the name must be subscribed by testator or by some other person in testator's presence and by his direction, that signature was subscribed in presence of and at direction of testator may be shown by extrinsic, parol, and circumstantial evidence.

Appeal from Circuit Court, Bath County. Suit by Nancy Wilson Hendrix's executor against Mary Reed and others. Decree for the former, and the latter appeal. Affirmed.

John A. Daugherty and Howard Gudgell, both of Owingsville, and John P. McCartney, of Flemingsburg, for appellants. C. W. Goodpaster, of Owingsville, Robt. Winn and W. B. White, both of Mt. Sterling, and J. J. Nesbitt, of Owingsville, for appellee.

MILLER, J. A paper dated May 13, 1911, and purporting to be the will of Nancy Wilson Hendrix, was offered for probate in the Bath county court. The county court refused to probate the paper, and an appeal was tak

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

"Q. Who was in the room when you went there? A. Aunt Nancy Hendrix and Charlie Wilson. Q. What was said, if anything, when you went in the room where these people were? A. Well, as I remember they spoke, and he said, The will, including the signature and the Gentlemen, I suppose you have come to witness attesting clause signed by the witnesses, was the will? Q. Who said that? A. Mr. Wilson. A. Mr. written by Charles Wilson, a farmer and Q. Then what occurred after that? Wilson told me where to sign it, and I did so former justice of the peace; and so much and got up, and Mr. Ramey signed it, and he thereof as throws any light upon the merits told us that we were excused. Q. Was Mrs. of this contest reads as follows: Hendrix present? A. Yes, sir; she was there.

"Be it remembered that I, Nancy Wilson Hen-Q. And you were both present when the other drix, of Bethel, Bath county, Kentucky, do make this my last will and testament in manner following. That is to say:

A. She didn't say anything.. We were told that we were excused, and when we were walking out she had the pen in one hand and had hold of the chair with one hand. Q. What chair? A. The one we sat in when we signed the paper. Q. Did she change her position from the time you all signed it until you started out the door? A. She was standing there when we signed it. Q. Do you know how she got the pen? A. Mr. Wilson handed it to her. Q. Where did he get it just before he handed it to Mrs. Hendrix? A. Mr. Ramey handed him the pen, you know."

Recrossed: "Q. Mr. Wilson had told you that you were excused? A. Yes, sir. Q. And you saw her do nothing with that pen? A. No, sir. "By the Court: What did she say? A. She didn't say anything."

ever read to you the portion of the paper which you have just read, that is, Then and there signed and published by the testatrix Nancy Wilson Hendrix, as and for her last will, in the presence of us, who, at her request, and in her presence, and in the presence of each other, have hereto set our names as witnesses'? A. No, sir. Q. Did you see any name above that of Nancy Wilson Whaley? A. No, sir. Q. Did she say anything to you about this paper at all? A. No, sir; nothing to me. Q. Nothing transpired there further than you have stated? A. No, sir; nothing more than that. Q. You didn't see the name Nancy Wilson Hendrix? A. No, sir. Q. You both left and were out before you saw anything done with that pen? A. No, sir; I didn't see anything done with the pen. Q. Did you know the age of Mrs. Nancy Wilson Hendrix? A. No, sir; I did not. Q. Her name wasn't Nancy Wilson Whaley? A. No, sir; she was Mrs. Hendrix. Q. Had she ever been a "Q. Who did you find at Mrs. Whaley's house Whaley? A. No, sir; she was a Wilson. Q. when you got there? A. Mr. Charlie Wilson. She was a Miss Wilson, and married a Hendrix? Q. Who else? A. Aunt Nancy Hendrix. Q. A. Yes, sir. Q. Do you know whether or not That is Nancy Wilson Hendrix? A. Yes, sir. she could write? A. I don't know; I never Q. Tell the jury what occurred after you got saw her." there. A. When we got there they were both in the room-Mr. Wilson and Mrs. Hendrix-and Mr. Wilson said, 'Men, you have come to witness the will? and we told him, 'Yes'; and we sat down to the table and witnessed the will. "By the Court: Was that in the presence of the old lady? A. Yes, sir.

Ramey, the other witness, testified substantially to the same effect as follows:

Re-examined: "Q. Her maiden name was Nancy Wilson? A. Yes, sir. Q. Nothing was read to you above your signature? A. No, sir. Q. This is the way it was folded (indicating)? A. Yes, sir. Q. And there were no blank spaces above your signature? A. No, sir."

Crouch was recalled, and further testified as follows:

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"Q. Mr. Crouch, Mr. White read to you the following: Nine hundred and eleven. Nancy Wilson X Whaley. Then and there signed and published by the testatrix Nancy Wilson Hendrix, as and for her last will, in the presence of us, who, at her request, and in her presence, and in the presence of each other, have hereto set our names as witnesses.' Was there anything of that kind read to you? A. No, sir. Q. Nothing happened further than you have detailed? A. No, sir. Q. You could not tell what was on the other side of that paper? A. No, sir."

Recrossed: "Q. Do you know what was on "Q. She was present when Mr. Wilson said, the other side of that paper the way it was fold'Men, you have come to witness the will'? A. ed? A. No, sir. Q. You couldn't tell whether Yes, sir. Q. And after that what did you and there were any blanks over here or not? A. Mr. Crouch do? A. He wrote his name first, There were no blanks in sight." and then I wrote mine. Q. Then what did you do? A. I laid the pen on the table, or give it to Mr. Wilson, one, I don't remember which; anyhow, he said, 'Gentlemen, you are excused,' and we left. Q. Do you know what Mr. Wilson did with the pen? A. Him or me, one, give it to Aunt Nancy; I think, though, he did. Q. What was Aunt Nancy doing when you went out of the door? A. The chair was like this (indicating), and she had the pen in one hand and hold of the chair with the other, going around to take the chair. Q. Is Mr. Charlie Wilson living or dead? A. He is dead. Q. When did he die? A. Seven or eight years ago. Q. Did he die before or after Mrs. Hendrix? A. Before. Q. What was Mr. Wilson's business? A. He was a magistrate and kind of lawyer for the people. Q. Wrote their contracts, deeds, and wills for people in that neighborhood? A. Yes, sir. Q. I will ask you to examine this paper, and ask you whether or not that is the paper you signed in the presence of Mrs. Nancy Wilson Hendrix? A. (witness examines paper). Yes, sir; that's it. Q. Did you sign that in the presence of Robert Crouch? A. Yes, sir. Q. Who signed the name Robert Crouch? A. He did-Robert Crouch. Q. In whose presence? A. In my presence, Mrs. Nancy Wilson Hendrix's presence, and Mr. Wilson's presence. Q. Show to the jury how that paper was folded, if at all, when you signed your name? A. Well, I remember of some writing; I remember of seeing a few lines above where we signed our names. Q. Was there any blank place above your signature? A. No, sir. Q. Read to the jury the language that was visible to your eye. A. Nine hundred and eleven. Nancy Wilson X Whaley. Then and there signed and

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published by the testatrix Nancy Wilson Hendrix, as and for her last will, in the presence

Mrs. Lucy Whaley, with whom Mrs. Hendrix lived, testified that Mrs. Hendrix told her on the morning of the day the will was executed that Charles Wilson "was going to bring her will that afternoon, and that Mr. Ramey and Mr. Crouch were going to witness it"; and that Ramey and Crouch called that afternoon and sat with Mrs. Whaley until Mr. Wilson called them into the room where he and Mrs. Hendrix were awaiting them. Mrs. Ishmael, a young woman who had been raised by Mrs. Hendrix, testified that Mrs. Hendrix told her she had made her will; that Charles Wilson wrote it; and that Robert Crouch and Sanford Ramey witnessed it. Mrs. Whaley and Mrs. Ishmael both further testified that Mrs. Hendrix also told them substantially the provisions of the will, and why she had disposed of her estate in the

manner stated in the will. Charles Wilson died in 1913, and Mrs. Hendrix died two

of us, who, at her request, and in her presence,
and in the presence of each other, have hereto
set our names as witnesses. Robt. Crouch.'
Q. Did you ever at any other time witness any years later.
other paper for Mrs. Nancy Wilson Hendrix?
A. No, sir."

The foregoing constitutes all the proof re

Cross-examined: "Q. Mr. Ramey, did anybody | lating to the execution of the will.

[1] 1. Taking up the several questions sep- | sons, and executed his will by signing the asarately, we will first consider this question: sumed name instead of his true name, it did Was the statutory requirement that the name of the testator must be subscribed to the will satisfied by the subscription of the name, "Nancy Wilson Whaley," instead of the testatrix's correct name, "Nancy Wilson Hendrix"? Strictly speaking, the subscription of neither name was essential to the validity of the execution.

not invalidate the will. Ripoll v. Morina, 12 Rob. (La.) 552; Redding's Goods, 14 Jur. 1052, 2 Rob. Eccl. Rep. 339. The will of a married woman signed by her using the name of her first husband instead of the name of the husband she had at the date of the will was sustained in the case of Glover's Goods, 11 Jur. 1022.

The cases showing the various applications of the rule are cited, and in the note to Pilcher v. Pilcher, 117 Va. 356, 84 S. E. 667, L. R. A. 1915D, 902. In that case E. M. Pilcher took a partly written letter which his wife was writing to her mother, and wrote upon the back of it these words:

"I give to my wife Alice McCabe Pilcher, all of my property real and personal. E. M. P."

The books contain many cases discussing the proposition as to what amounts to a signature by a testator. As a general rule the use of any signature intended by the testator to authenticate the instrument will suffice as a signature by the testator. In fact, it is not even necessary that a name be signed; any mark or character intended as a signature is sufficient. 40 Cyc. 1102; Upchurch v. Upchurch, 16 B. Mon. 102; Garnett v. Fos- The Virginia Supreme Court of Appeals ton, 122 Ky. 195, 91 S. W. 668, 28 Ky. Law held that the initials constituted a good sigRep. 1119, 121 Am. St. Rep. 456. In Page on nature; and as aiding the court in reaching Wills, § 172, it is said a testator may sign his that conclusion it took into consideration the name by writing it out in full, or by abbrevi- oral testimony as to statements made by Mr. ating it, or by writing his initials or his Chris- Pilcher to the effect that he was going to tian name, or by using his assumed name, make his will; that the document was his when done without intent to deceive. A sig-will; and that he wanted it preserved. nature by mark being sufficient, the initials In Re Susana Clarke's Goods, 1 Swabey & of the testator's name would also suffice; T. 22, 27 L. J. Prob. N. S. 181, 4 Jur. N. S. and it would be immaterial that he signed by 24, the testatrix executed her will by making a wrong or an assumed name which would her mark over her maiden name "Susana be taken as a mark, or that against the mark Barrell," instead of her married name "Suthere was written a wrong name. Jarman sana Clarke." She was described in the body on Wills, 6 Am. Ed. 106. of the will as Susana Clarke. The will was written by a schoolmaster who was dead when it was offered for probate, but upon the contest on the probate of the will it was held to have been sufficiently executed.

A will may be validly executed, although signed only by the testator's mark. 40 Cyc. 1102; Upchurch v. Upchurch, 16 B. Mon. 102; Garnett v. Foston, 122 Ky. 195, 91 S. W. 668, 28 Ky. Law Rep. 1119, 121 Am. St. Rep. 456. And a signature by mark is not rendered insufficient by the fact that the testator's name does not appear in the body of the will. An illegible scrawl intended as a signature is sufficient. Sheehan v. Kearney, 82 Miss. 688, 21 South. 41, 35 L. R. A. 102; Hartwell v. McMaster, 4 Redf. Sur. (N. Y.) 389; Re Guilfoyle's Will, 96 Cal. 598, 31 Pac. 553, 22 L. R.

A. 370. The omission of a letter from the

testator's name does not make the signature insufficient. Boone v. Boone, 114 Ark. 69, 169 S. W. 779; Word v. Whipps, 28 S. W. 151, 16 Ky. Law Rep. 403; Bradford's Succession, 124 La. 44, 49 South. 972, 18 Ann. Cas. 766; Vernon v. Kirk, 30 Pa. 218. A signature made by the testator writing his initials only was sustained in Savory's Goods, 15 Jur. 1042; Blewitt's Goods, L. R. 5 Prob. Div. 116; Emerson's Goods, Ir. Lr. 9 Eq. 443; and in Pilcher v. Pilcher, 117 Va. 356, 84 S. E. 667, L. R. A. 1915D, 902.

The holographic signature of a testatrix who used her first name only was sustained in Knox's Appeal, 131 Pa. 220, 18 Atl. 1021, 6 L. R. A. 353, 17 Am. St. Rep. 798, where Harriett S. Knox executed her will by signing it "Harriett." And where the testator

In Re Goods of Emerson, Ir. L. R. 9 Eq. 443, Emerson impressed his seal bearing his initials upon wax at the end of the document, and acknowledged the paper as his will in the presence of witnesses.

The court held this the testator had said, "this is my hand and to be a good signature, concluding that as seal," and that "hand" meant "signature," the wax impression was as good as if it had

been written.

Eccl. Rep. 339, Charlotte Redding moved inIn Redding's Goods, 14 Jur. 1052, 2 Rob to a new neighborhood, where for years she after reassumed her true name of Charlotte was known as Charlotte Higgins. She thereRedding, and was so known for the rest of her life. But during the time she was known as Charlotte Higgins she executed her will, signing it "Charlotte Higgins." Upon the reassumption of her true name of Charlotte Redding she caused the name of Charlotte Higgins to be erased, although a blur of the signature was left, and wrote thereafter the name "Charlotte Redding," but did not have it authenticated by new witnesses. Upon her death it was ascertained that her true name was Redding; and although the court held that the last signature to the will was not valid, it was held that the first signature