20. Where the witness has deceased, proof of his handwriting is prima facie evidence of his attestation in due form.37 This question came before the Supreme Court of the United States, in regard to a California will, where all the witnesses had deceased, and the court held that proof of the signatures of the testator and all the witnesses was sufficient, the sindico, or magistrate, before whom it was executed, being treated as one of the witnesses.38

21. The late English cases hold, as we have shown, that it is indispensable, under their present statute (and it is substantially the same as the statute of frauds in this respect), that the witnesses to a will, where they do not sign, must make some mark on the will, with the intention that the mark shall represent their signatures as attesting the execution.89 And where the witness subscribed the name of her husband, not intending to have it represent her own name, it was held no sufficient attestation.40

22. The entire omission of the attestation clause in a will, even where the only surviving witness testified that the will was executed in his presence alone, and that he suggested the necessity of two witnesses, but could remember no particular circumstances, is not sufficient to rebut the presumption in favor of the due execution of the instrument.41

Nickerson v. Buck, 12 Cush. 332.

"Adams v. Norris, 23 How. U. S. 353. The court here give the uniform practice of the country in regard to the mode of executing wills, the effect of repealing the existing law, the custom having the tacit assent of the authorities. See also, Tevis v. Pitcher, 10 Cal. 465. The declarations of the testator, that he had made a will of the same character as the one presented, were held admissible to prove it. See also, Andrews v. Motley, 12 C. B. N. s. 526; Dean v. Dean, 27 Vt. 746.

20 Ante, pl. 5, n. 12.

.* Pryor v. Pryor, 29 Law J. N. s. 114.

"Thomas in re, 5 Jur. N. s. 104; ante, pl. 16, 17; Dean v. Dean, 27 Vt.

746.

SECTION V.

PRESENCE OF THE TESTATOR AT THE ATTESTATION OF THE WITNESSES.

1. This implies bodily presence and mental consciousness.

2. It must not be done covertly, or without the knowledge of the testator.

3. Not required testator should see the attestation. Sufficient if he might have done so.

4. Not indispensable witnesses should be in same house with the testator, if in a condition to be seen by him.

5. Must not appear that testator was in part of the room where he could not see the attestation.

n. 6. Extensive discussion of the points decided in the cases bearing on the question. 6. Lord Ellenborough's commentary on the last category.

7. The presumption where the testator might have seen the attestation is conclusive that he did see it; and not liable to be contradicted by evidence.

8. Bodily weakness may create constructive absence, but blindness not.

9. The courts apply the ordinary laws of human experience to these presumptions. 10. The statutes of New York do not require attestation of witnesses in the presence of the testator.

11. Hence if it be done at the same time of the execution by testator, it is sufficient. 12. Presence, in Georgia, requires the ability to perceive. Out of the room, prima facie out of sight.

13. The rule, in Vermont, requires the testator and witnesses to be able to see each other.

§ 20. 1. As both under the statute of frauds, and the present English statute, and most of the statutes in the American states, it is required that the witnesses subscribe the will in the presence of the testator, it becomes important to determine what is implied in that requirement. It is indispensable that the testator should not only be present bodily, but he should also be in a conscious state. And where the testator, after having signed and published his will, fell into a state of insensibility, before the witnesses subscribed their names, it was considered that the attestation was not sufficient.1

1 Right v. Price, Doug. 241.

2. And it is necessary, not only that the testator should be in a conscious state, but the act must be done with his knowledge, and not in a clandestine and .fraudulent way, since that would not be regarded as an attestation in his presence, although done in the same room, and while he was in a conscious state.2 And if not done in the same room where the testator was, but so that he might have observed the attestation, it is sufficient. As where the testator desired the witnesses to his will to go into another room, seven yards distant, to attest it, in which there was a window broken, through which the testator might see them the court said: "It is enough if the testator might see." 3. "It is not necessary he should actually see them signing; for at that rate, if a man shall turn his back, or look off, it would vitiate the will." And where the testator lay in a bed in one room, and the witnesses went through a small passage into another room, and there set their names, at a table in the middle of the room, and opposite to the door, and both that, and the door of the room where the testator lay, were open, so that he might see them subscribe their names if he would, and though there was no positive proof that he did see them subscribe, yet that was sufficient under the statute, because he might have seen them, it shall therefore be considered in his presence.1

4. And it does not seem indispensable, that the testator and the witnesses should be in the same house at the time of the execution, in order to constitute actual presence, within the statute. For where the testatrix, being a married woman, had a power to execute a will, and ordered the same prepared by

* 1 Jarman, ed. 1861, 80; Longford v. Eyre, 1 P. Wms. 740. But where the witness swore that he subscribed the will at the request of the testator, and in the same room, it was held sufficient.

Shires v. Glascock, 2 Salk. 688. One case here put by the court is, where the testator being sick, and in bed, and the curtains drawn, he would still be regarded as virtually present; s. P. Newton v. Clarke, 2 Curt. 320.

her attorney, and went to his office to execute the same; but being asthmatical, and the office very hot, she retired to her carriage to execute it, the witnesses attending her, and after having seen the execution of the will, they returned into the office to attest it, and the carriage was accidentally put back to the window of the office, through which, it was sworn, by a person in the carriage, the testatrix might see what passed: immediately after the execution, the witnesses took the will to her, saying they had attested it, and she, folding it up, placed it in her pocket: Lord Thurlow was strongly inclined to treat this as a sufficient execution and attestation of the witnesses in her presence.5

5. But where the attesting witnesses retired from the room where the testator had signed, and subscribed their names in an adjoining room, and the jury found, that from one part of the testator's room, a person by inclining himself forwards, with his head out at the door, might have seen the witnesses, but that the testator was not in that part of the room, it was held, that the will was not duly attested.

Carson v. Dade, 1 Br. C. C. 99.

Doe d. v. Manifold, 1 M. & S. 294. The Lord Chief Justice here refers to the fact of having gone to view the office, through the window of which it was proved the testatrix might have seen the will attested, while sitting in her carriage, in the case last cited. Machell v. Temple, 2 Show. 288, where the testator “being sick, and so great a company in the room, that the noise thereof disturbed him," he, after signing in the presence of the witnesses, and publishing the same, requested the witnesses "to go into the next room to set their names," is sometimes cited to show that such an execution is not valid. But that case being doubted by counsel and court, and a special verdict ordered, the jury refused to give a special verdict, and remained obstinate, after being sent out, "twice or thrice,” and “would find for the heir at law, saying, they were all of opinion 'twas no good will." The reporter adds the significant "Notand: The first jury that ever refused a special verdict on a point of law, they all incurring the danger of attaint." Edlestone v. Speake, 1 Show. 89, holds the attestation bad, if in such a place "that the testator could not see the witnesses." Broderick v. Broderick, 1 P.Wms. 239, recognizes the same rule. See Re Colman

6. Lord Ellenborough, Ch. J., here lays down the rule, that it is "not necessary the devisor should actually see. In favor of

3 Curt➜18; Re Ellis, 2 Curteis, 395; Re Newman, 1 Curteis, 914; Norton v. Bazett, 1 Deane & Swab. 259; 3 Jur. N. s. 1084.

From the cases before cited in this note, it seems plain that it makes no difference whether the witness retire beyond the presence of the testator, at his solicitation or for his comfort, or it is done from other considerations wholly. See also, to same effect, Reynolds v. Reynolds, 1 Speers, 253.

The testator must either sign or acknowledge his signature in the presence of the witnesses, and the witnesses must sign in the presence of the testator. Butler v. Benson, 1 Barb. 526; Rucker v. Lambdin, 12 Sm. & M. 230; Boldry v. Parris, 2 Cush. 433. But presenting the instrument to be witnessed, is sufficient acknowledgment of the signature, and of its being executed by the testator. Denton v. Franklin, 9 B. Mon. 28. See also, High Appt., 2 Doug. (Mich.), 515, And it was held, in Sturdivant v. Birchett, 10 Grattan, 67, that where the witnesses wrote their names in an adjoining room, where the testator could not see them, and immediately took the will, open in the hand of one of them, to the testator, and said, "here is your will witnessed," pointing to the names, and all being present, this was a substantial subscribing of their names in the presence of the testator, two judges dissenting. This was not perhaps strictly in conformity with the English decisions upon the subject, inasmuch as they do not allow the witnesses to a will to adopt a signature made by them at another time. And it might be said, if the witnesses were allowed to carry the will out of the testator's sight, there might be an opportunity for substituting another paper. But this would prove too much. It would seem to prove, that after the paper had once been out of the testator's sight, he could never know it was the same paper which was returned to him, which would be absurd. The truth is, that if this will, after being returned to the testator, and recognized by him as his will, could not receive such an attestation as to become a valid will, it must involve the absurdity, that if the testator allowed the paper, which he had once made, or caused to be made, as the expression of his will, to go out of his sight, so that he could not be certain of no substitution of another paper in its stead, and that by ocular demonstration; no subsequent recognition would enable him to make it the expression of his will. And that is the only question involved in the last case, except that of the witnesses adopting their signatures, made at another time, as a present attestation, in both of which points the decision seems to us the only sensible view which can be taken of the subject.

In Ruddon v. M'Donald, 1 Bradf. Sur. Rep. 352, it is held, that it is not indis