attestation, it is presumed if he might see, he did see." But the rule requires that the witnesses should be actually within the

pensable under their statute, that the signatures of the subscribing witnesse should be affixed when the witnesses are literally in the presence of the testator. But in Brooks v. Duffiell, 23 Ga. 441, it was held, that the witnesses subscribing in the same room, was not sufficient, if the testator was in a part of the room where he could not see them, although hindered only by a door-shutter intervening between himself and the witnesses. But see Hill v. Barge, 12 Ala. 687. An attestation in the same room was held presumptively in presence of the testator. Howard's will, 5 Moore, 199. But where the subscription was in an adjoining room, the testator lying in bed, the intervening door being open, and the testator seeing the books, but not the hands, of the witnesses, it was held insufficient. And in Moore v. Moore, 8 Grattan, 307, the court were equally divided upon the question whether the attestation, being in an adjoining room, where the testator might have placed himself in a position to have seen them, but not having done so, was sufficient. In general, such an attestation is held insufficient in the English courts. But see Wright v. Lewis, 5 Rich. 212, where the attestation is held sufficient, if the testator might have seen it. But it must be admitted, the distinctions upon this point are more nice than wise, and do not seem to be founded upon any intelligible principle, unless we say, that in every case where the testator might have witnessed the attestation, without leaving the room, and by the mere act of volition, it shall be regarded as a valid execution. But that where there is any physical impediment to his witnessing the attestation, while he remains in the room, the attestation is not valid. The cases will hardly range themselves under this distinction, perhaps. It seems to be required, that the testator should have been in a position, where, by the mere act of volition, he could have witnessed the attestation. And if so, it will be prima facie, and most of the cases say, conclusive evidence, that he did see the attestation of the witnesses, which is the same point we reached in examining the English cases. Watson v. Pipes, 32 Miss. 451. See also, Tyler v. Mapes, 19 Barb. 448. Where the witness lay in bed in a room adjoining that in which the witnesses signed, but so that he could see them all but the arm and hand while writing their names, which was hid from him by their bodies, it was held that, it being presumable that he might have seen and identified the paper, while the witnesses signed it, the attestation by them was sufficient. Nock v. Nock, 10 Gratt. 106. And in a case where the facts were almost identical with the last case above, except that the testator could not see and identify the paper attested, it was held not to be a valid attestation. Graham v. Graham, 10 Ired. 219. See also, Boldry v. Parris, 2 Cush. 453, where

range of the organs of sight of the devisor. And where the devisor "cannot by possibility see the act doing, that is out of his presence." "If the jury had not negatived the testator being in a situation that he might have seen the attestation, I should have had great doubts on this case."

7. In some of the American cases, it seems to be considered, that the rule by which the attestation is held to be in the presence of the testator, where it was such that the testator might have witnessed it, is only a prima facie presumption of fact, liable to be defeated by proof, that the testator did not in fact see the attestation. This is the language of Mr. Justice Dewey, in the case last cited: "It being held," says the learned judge, "sufficient evidence of the presence of the testator, if the facts show a possibility of his seeing the witnesses subscribe their names, unless controlled by other evidence, showing that in fact he did not see them, and that therefore it was not done in his presence." But the English cases treat the presumption of the execution being in the presence of the testator, if so that he might have observed it, as one not liable to be rebutted by evidence, that he did not in fact see it witnessed.8

8. But if the testator be unable to move without assistance, and have his face turned from the witnesses, so that it is out of his power to see them, if he wished to do so, the attestation is insufficient. And where the testator is blind, it was considered

it was held, that two of the witnesses subscribing their names in a room connected with the one where the testator was by an intervening room, but not in his presence, hearing, or view, was not a compliance with the statute. By the statute in Arkansas, it is not required that the witnesses sign in the presence of the testator, if present in court. Will of Cornelius, 14 Ark. 675.

' Dewey v. Dewey, 1 Met. 349; Hogan v. Grosvenor, 10 Met. 54.

* Casson v. Dade, 1 Br. C. C. 99; Lord Ellenborough, in Doe d. v. Manifold, 1 M. & S. 294.

• Tribe r. Tribe, 1 Rob. 775; 13 Jur. 793; 7 Notes Cas. 132, 1 Jarman, ed. 1861, 82.

sufficient if the testator was where he might have seen the witnesses if he had not been deprived of his eyesight.10

9. The courts in such cases adopt the ordinary presumptions of fact, which conform to the natural and ordinary course of events. As, if the question arises, in what part of a room the witnesses subscribed the attestation of a will, it being possible for the testator to have seen them from one part of the room, but not from that part where the table ordinarily stood, and where, in consequence, it would have been most natural for the witnesses to have affixed their names; it was held, that if it had appeared that the testator, or any of the parties concerned in the execution of the will, knew that it was necessary that the same should be attested in the presence of the testator, that would have been a circumstance upon which the jury might have come to the conclusion, that the table had been removed from its usual place, and that some other proceeding had been taken, in order that the attestation might be made in such a way as to comply with the requisitions of the law. But in the absence of such evidence no such presumption could be made, either by the jury or the court.11

10. It seems to be conceded that the Revised Statutes of New York do not require the witnesses, in terms, to attest or subscribe the will, in the presence of the testator.12 It seems to us, therefore, that the construction adopted by the surrogate in Rudder v. McDonald,12 that the provisions of the Revised Stat

10 Re Piercy, 1 Rob. 278; 4 Notes Cas. 250.

"Winchilsea v. Wauchope, 3 Russ. 441-444, 445. The cases are very numerous in the American states in regard to the point, what will constitute a sufficient presence of the testator at the time of the attestation by the witnesses, but we should not deem it proper to insert them here in such detail as to give the point of each; and without that, they would be of no benefit, since a mere digest of the cases is proper to be looked for in the books, prepared exclusively for that purpose.

12 Hand, J., in Butler v. Benson, 1 Barb. s. c. 534, 535; Ruddon v. McDonald, 18 Bradf. Sur. Rep. 352.

utes embrace all the statutory requirements upon the subject, is the one likely to prevail in that state, and that all which the courts of that state will finally consider as indispensable is, that the subscribing witnesses should sign the attestation at the same time with the execution, by the testator, in whatever mode that be finally done, either by signing, or acknowledging his signature, and declaring it his will; and that it is not requisite that the subscribing witnesses should strictly and literally sign their names in the presence of the testator.18

11. It was accordingly held, that if they sign in an adjoining hall, out of the sight of the testator, it is sufficient, though it must be done at the time of the execution or acknowledgment, and with the knowledge and consent of the testator.14

12. In Georgia, the testator must have been in such a position as to be able to see the witnesses sign, to constitute presence.15 And where the witnesses did not sign in the same room where the testator was, it raises a presumption that it was not in his presence, but if the jury find that he might have seen it, and knew it was going on and approved it, it is good.16

13. In Vermont, and some other states, perhaps, the statute requires the attestation of the witnesses to be in the presence of the testator, and of each other, but it is there held, that all which is requisite to constitute such presence is, that the testator and the witnesses should all be in the same room for the purpose of executing the will, and that each has an opportunity to witness the execution of the will by the others, if he choose to turn his eyes in that direction.17

"Ruddon v. McDonald, 1 Bradf. Sur. Rep. 352.

14 Lyon v. Smith, 11 Barb. s. c. 124. And the statutes in some of the other states also dispense with the actual presence of the testator at the time of attestation by the witnesses. See Rev. Stats. of Ark. and New Jersey.

15 Reed v. Roberts, 26 Ga. 294.

16 Lamb v. Girtman, 26 Ga. 625; Watson v. Pipes, 32 Miss. 451. "Blanchard v. Blanchard, 32 Vt. 62.

1. The statute of frauds required witnesses to be credible, which means competent.

2. The time when witnesses are required to be competent.

3. It seems to be considered that this is required, at the time of attestation.

4. One does not become a witness, in the strict sense, until called to testify.

5. The witnesses to a will do, in effect, if not in form, testify at the time of subscribing.

6. There is more propriety, therefore, in requiring them to be competent at that time.

7. An executor, or devisee, in trust, not thereby rendered incompetent.

8. The English statute has removed these disabilities. Husband and wife.

9. An executor may be rendered imcompetent by official commissions.

10. Further disabilities of the executor considered.

11. The heir is always held to be in by descent, unless he take a different estate by devise.

12. There is no need of more than one attestation, where the will is made and signed at different times.

13. But this rule will not apply to the will and a codicil.

14. Any paper may be so referred to as to become part of the will.

15. But the paper must be clearly identified by the reference.

16. This does not exclude all external evidence.

17. But it must appear clearly that the paper was then in existence.

18. The effect of such reference is to incorporate such paper into the will, and render it a part of the same.

19. English and American cases illustrating the subject referred to.

20. Further illustration of the subject. Case in Surrogate Court, N. Y.

21. An extraneous paper must be clearly referred to, in order to make it part of the will.

22. The paper must be identified beyond reasonable doubt.

23. The reference to the unattested paper, and parol evidence, must leave no doubt of identity.

n. 38. Extensive reviews of the cases on this point.

24. The mode of proof of wills claimed to be forged, considered.

25. Subscribing witnesses not impeachable by their declarations, unless examined.

26. Wills under power require the same proof and the same construction as others.