293 Mich. 555 | Mich. | 1940
This is a will contest in wbicb Zofia Cytacki, mother of deceased Walter K. Cytacki, attacks tbe validity of tbe purported will upon tbe ground that tbe instrument was not executed in accordance with statutory requirements.
' The trial court held- in favor of the will. In the case at bar there is no claim of incompetency, fraud or undue influence. Nor is there any question about the testator signing the purported will.
It is the claim of contestant that the purported will of the deceased was not executed, attested and witnessed in the presence of the testator as required by the statute relative to the execution of wills.
Section 13482, 3 Comp. Laws 1929 (Stat. Ann. § 26.1065), provides:
“No will made within this State, except such nuncupative wills as are mentioned in the following section, shall be effectual to pass any estate, whether real or personal nor to charge or in any way affect the same, unless it be in writing and signed by the testator or by some person in his presence, and by his express direction, and attested and subscribed in
The statute does not require that the testator shall subscribe to the will in the presence of the attesting witnesses, In re Dougherty’s Estate, 168 Mich. 281 (38 L. R. A. [N. S.] 161, Ann. Cas. 1913B, 1300). _ In Re Lane’s Estate, 265 Mich. 539, we held the signing of witnesses in an adjoining room within call of the testator was sufficient under the circumstances; and in Re Kohl’s Estate, 278 Mich. 561, we held that under 3 Comp. Laws 1929, § 13482 (Stat. Ann. § 26.1065), relative to the execution of a valid will, an unbroken supervising attesting attention of the subscribing witnesses is essential to give validity to a will regardless of the order of' signing by the testator and witnesses.
In Cook v. Winchester, 81 Mich. 581, 590 (8 L. R. A. 822), we said:
“In the definition of the phrase ‘in the presence of’ due regard must be had to the circumstances of each particular case, as it is well settled by all the authorities that the statute does not require absolutely that the witnessing must be done in the actual sight of the testator, nor yet within the same room with him. If, as before shown, they sign within his hearing, knowledge and understanding, and so near as not to be substantially away from him, they are considered to be in his presence.”
In the case at bar, the deceased, Walter K. Cytacki, remained in his own home while the scrivener took the instrument to an adjoining house and there at her request the signatures of the witnesses were obtained to the instrument. It is also to be noted that the testator did not accompany the scrivener to the home of the witnesses, although able to do so. The witnesses neither saw or talked to testator at the time
Under the circumstances in this case it was physically impossible for the testator to see, hear or know what was said or done in the adjoining house during the witnessing. In our opinion, the witnessing was not done in the “presence of the testator ’’ within the meaning of that term as required by statute;
The judgment is reversed and the cause remanded to the probate court for further proceedings. Contestant may recover costs.