any undue influence upon him; and it was conceded that he was of sufficient mental capacity. L. Cowan, for the contestant. I. W. Richardson, in support of the will, was not called upon. MORTON, C. J. The only question presented by this report is as to the sufficiency of the attestation by the witnesses to the will and codicil of the testator. The Statutes provide that, in order to be valid, a will or codicil must be signed by the testator, or by some person in his presence and by his direction," and attested and subscribed in his presence by three or more competent witnesses." Gen. Sts. c. 92, § 6. Pub. Sts. c. 127, § 1. It appeared at the hearing that the testator had received a severe injury, and was lying upon his bed unable to move. His sight was unimpaired, but he could only look upward, as he was incapable of turning his head so as to see what took place at his side. As to the codicil, it appeared that it was attested and subscribed by the three witnesses in the same room with the testator, at a table by the side of the bed about four feet from his head. The contestant contends that this attestation was insufficient, because the testator did not and could not see the witnesses subscribe their names. It has been held by some courts, upon the construction of similar Statutes, that such an attestation is not sufficient. See Aikin v. Weckerly, 19 Mich. 482, 505. Downie's Will, 42 Wis. 66. Tribe v. Tribe, 13 Jur. 793. Jones v. Tuck, 3 Jones (N. C.) 202. Graham v. Graham, 10 Ired. 219. But we are of opinion that so nice and narrow a construction is not required by the letter, and would defeat the spirit, of our Statute. It is true that it is stated, in many cases, that witnesses are not in the presence of a testator unless they are within his sight; but these statements are made with reference to testators who can see. As most men can see, vision is the usual and safest test of presence, but it is not the only test. A man may take note of the presence of another by the other senses, as hearing or touch. Certainly, if two blind men are in the same room, talking together, they are in each other's presence. If two men are in the same room, conversing together, and either or both bandage or close their eyes, they do not cease to be in each other's presence. In England, where the tendency of the courts has been to construe the Statute with great strictness, it has always been held that a blind man can make a valid will, although of course he cannot see, if he is sensible of the presence of the witnesses through the other senses. Piercy's Goods, 1 Rob. Ecc. 278. Fincham v. Edwards, 3 Curt. Ecc. 63. It would be against the spirit of our Statutes to hold that, because a man is blind, or because he is obliged to keep his eyes bandaged, or because, by an injury, he is prevented from using his sight, he is deprived of the right to make a will. The Statute does not make the test of the validity of a will to be that the testator must see the witnesses subscribe their names; they must subscribe "in his presence;" but in cases where he has lost or cannot use his sense of sight, if his mind and hearing are not affected, if he is sensible of what is being done, if the witnesses subscribe in the same room, or in such close proximity as to be within the line of vision of one in his position who could see, and within his hearing, they subscribe in his presence; and the will, if otherwise duly executed, is valid. In a case like the one before us, there is much less liability to deception or imposition than there would be in the case of a blind man, because the testator, by holding the will before his eyes, could determine by sight that the will subscribed by the witnesses was the same will executed by him. We are of opinion, therefore, that the codicil was duly attested by the witnesses. The facts in regard to the attestation of the original will do not materially differ from those as to the codicil. The witnesses signed the will at a table nine feet distant from the testator, which was not in the same room, but near the door in an adjoining room. The door was open, and the table was within the line of vision of the testator, if he had been able to look, and the witnesses were within his hearing. The testator could hear all that was said, and knew and understood all that was done; and, after the witnesses had signed it, and as a part of the res gestæ, it was handed to the testator, and he read their names as signed, and said he was glad it was done. For the reasons before stated, we are of opinion that this was an attestation in his presence, and was sufficient. The result is, that the decree of the justice who heard the case, admitting the will and codicil to probate, must be affirmed. Decree affirmed. SECTION II. REVOCATION OF WILLS. A. Revocation by Subsequent Instrument. BROOK v. WARDE. NISI PRIUS. 1572. [Reported Dyer, 310 b.] ONE Kyete, of Kent, by his will in writing, devised his land of gavelkind to one Harrison in fee; and five days before his death he revoked his will in this point, by parol only, in the presence of three witnesses, requiring their testimony of his present revocation; and said to them further, that he would alter this in his written will when he came to town, &c., and before his coming thither he was murdered by the said A. Revocation by Suburg In Harrison. بع in BASSET. Instrument Book & Stallwilt miting, as it was came out in r to the bough, the son 274 well, of Kent, had made a well in writing giving This lands to Harrison in fer. Five apys defore his sinch he revoked his will, by paral, presence of 3 witnesses. I said what he intended is all his written will. Buch before he did so, wwas killed by Harrison Held revocation good, who not in not refaced will writing, I ist we 275 I is H. Killing new being reised in fie, made his will, I devised he's lands to B for life, rive to I in fee fake be made another testamens in w 1 L The following year. Before hi Leach, while ill and forbidden to bidden to retornment te void acts but the reason is, that write, she desired the will to be delayed. It appears now it was not the testator's intent that ८ a friend wrote a leelee, wad indude allie and sent to ever he must in plealing say, that the tes tator by his last w devised, 44 Ass. 36; 2 ce will but The wich. But her feel weed fo but before if all, or be a confirmat Held revocation !!!! tion the former: And the judgment was afterwards affirmed in the stee was of the intention to recake (2) and a that the testator must see the witnesses subscribe their names; they must subscribe "in his presence;" but in cases where he has lost or cannot use his sense of sight, if his mind and hearing are not affected, if he is sensible of what is being done, if the witnesses subscribe in the same room, or in such close proximity as to be within the line of vision of one in his position who could see, and within his hearing, they subscribe in his presence; and the will, if otherwise duly executed, is valid. In a case like the one before us, there is much less liability to deception or imposition than there would be in the case of a blind man, because the testator, by holding the will before his eyes, could determine by sight that the will subscribed by the witnesses was the same will executed by him. We are of opinion, therefore, that the codicil was duly attested by the witnesses. The facts in regard to the attestation of the original will do not materially differ from those as to the codicil. The witnesses signed the will at a table nine feet distant from the testator, which was not in the same room, but near the door in an adjoining room. The door was open, and the table was within the line of vision of the testator, if he had been able to look, and the witnesses were within his hearing. The testator could hear all that was said, and knew and understood all that was done; and, after the witnesses had signed it, and as a part of the res gesta, it was handed to the testator, and he read their names as signed, and said he was glad it was done. For the reasons before stated, we are of opinion that this was an attestation in his presence, and was sufficient. The result is, that the decree of the justice who heard the case, admitting the will and codicil to probate, must be affirmed. Decree affirmed. ONE Kyete, of Kent, by his will in writing, devised his land of gavelkind to one Harrison in fee; and five days before his death he revoked his will in this point, by parol only, in the presence of three witnesses, requiring their testimony of his present revocation; and said to them. further, that he would alter this in his written will when he came to town, &c., and before his coming thither he was murdered by the said |