182 Wis. 242 | Wis. | 1923
The question raised by the appeal is whether the witnesses, or any of them, signed in the presence of the testator as required by sec. 2282, Stats. Were this a' case of first construction of the statute it might well be that the facts bring the attestation within the statute, giving N to the word “presence” the broad liberal meaning that some courts have given it. But our court in an early day in the case of Will of Downie, 42 Wis. 66, decided in 1877, held that the witnesses must subscribe in a place where the testator, if not blind, may, if he so desires, see them sign, and
When a will for the purpose of attestation is taken to a place where a testator of normal senses, though he desires so to do, cannot by his own act or by the aid of others in moving him either hear what is said or see the execution of the attestation, it must be deemed to be not within his presence. To hold otherwise would be to permit a will to be taken entirely away from the testator for purposes of attestation. It was the purpose of the statute to require the attestation of the witnesses to be in the presence of the testator as the word “presence” is ordinarily used, that is, in a place where the testator can by the use of his senses ascertain what is being done. When the place is beyond the reach of any of his senses it is no longer within his presence. That
It is urged that since the attestation clause imports verity and that in the case of the death of the witnesses before probate the presumption that they signed in the presence of the testator would be sufficient to admit the will to probate, it should be admitted under the evidence as it stands. The answer to that is that we must decide the case upon the evidence in the record, and not upon evidence as it might have been had it been impossible to secure the evidence of the witnesses to the will.
By the Court. — Judgment affirmed.