| Sup. Ct. N.C. | Apr 5, 1803
The requisites to the right execution of a will are that thetestator must be sane and under no restraint or improper influence; that he must sign it; that it must be witnessed in his presence by two witnesses. There is a sound distinction between an honest and an unfair exertion of influence. Should a brother or sister, for instance, with whom the testator had been at variance, represent to him the facts which had led to it in such a way as to convince him that his displeasure was groundless, and by these means he should alter his former purposes, and make a will in her favor, or in favor of her children, to the prejudice of legatees provided for by a former will, that would not be cause for invalidating the latter. The jury will judge whether any influence has been used on the occasion of making this will; whether it was by fair and reasonable means, or by unfair and fraudulent ones, and decide accordingly. As to the point of execution, the two witnesses must each depose to the signing as well as to every (233) *214 other material fact. But the signing may be proved from the witness having seen it written by the testator or from having heard him acknowledge it. It is not necessary, if he acknowledge the signing, that the name, orsignature, or handwriting, should be before him at the time; if the paper lie at a distance on the table, and he acknowledge the signing without seeing it, it is sufficient. It is admitted, and so the law is, that the attestation of the witnesses may be at different times, so it be in the presence of the testator.
Verdict for the will.
NOTE. — Upon the first point, see Downey v. Murphey,
Cited: In re Herring,