Eliot v. Eliot
92 Mass. 357
Mass.
1865
Check Treatment
Dewey, J.

The question of the sufficiency of the evidence in the present case to authorize the finding of a legal execution of the -will by the testator, and a due attestation thereof by the subscribing witnesses, seems to be fully settled by our decision in the case of Ela v. Edwards, 16 Gray, . All the points now taken in reference thereto were considered in that case, and *359the will was sustained. In some respects the attestation by the witnesses in that case was open to greater objection, as the attestation clause was wholly wanting, whereas in the present case the names were written under the words “ witness to signature.” There, as in this case, one of the attesting witnesses was not present in court, and the inference of due and legal attestation was to be drawn from the proof of the handwriting of the witness, and other circumstances favoring the presumption that the requisites of the statute had been complied with. For the authorities sustaining such ruling, we refer to the opinion given in that case.

In arriving at the decision sustaining the present will, we have taken the facts and evidence as they appear in the agreed statement drawn up and assented to by the appellants on the one side, and the administrator with the will annexed, appointed by the judge of probate upon the allowance of the will, and before the appeal was taken, as the other party. The refusal to admit the devisee named in the will as a party to maintain it before the supreme court of probate on the appeal was erroneous. He was a party in interest, and his right to appear and support the will was not affected by any proceedings of the judge of probate. His interest continued until the will was established in the appellate court, and therefore he was entitled to be heard. But this ruling has become immaterial, inasmuch as upon the facts stated' and agreed by the other parties the will has been established.

The decree of the probate court admitting the instrument to probate as the will of Andrew Eliot is affirmed.