Graham v. . GrahamGraham v. . Graham
The rule laid down by his Honor seems to be a very rigid constructiоn of the terms ‘ in his presence,” which are used in the aсt; but it is in conformity with the cases hitherto decided on this subjeсt, and, we believe, with the policy and meaning of the statute^ Except in the case of a blind person, “prеsence seems to have been understood as hаving the same sense as “within view;” and it follow's, that the thing to be sеen, or to be within the power of the party to see, is the very fact Ufsubscribing by the witness. Thus in Shires v. Glascock, 1 Atk. 688, w’hich was the first or one of thе first cases that occurred in England under the statute of frаuds, it was held that a signing in another room, some yards distant from thе testator, was a subscribing in his presence, because he might see it by a broken window : the Court saying, “that the statute required attesting in the presence of the testator, tо prevent obtruding another will in the place of the truе one;” therefore, that w'hen “the signing is in the view of the testator, it is enough,” though he should not actually sec them signing. That, wе take *221 it, is the true principle of the statute, that a subsсribing by the witness must be in such a situation, whether within or without the testatоr’s room, as will enable the testator, if he will look, to see, that the paper signed by him is the same,which is subscribed by thе witness. Therefore, when they subscribe out of the testator’s room, and in such a situation that he cannot see the paper, and for that reason cannot seе and know for himself, that it is the true paper, it cannot in аny proper sense be said, that the thing was done in his prеsence. The Statute meant, that he should have evidence of his own senses to the subscribing by the witnesses, just as he should to a signing for him by another by his direction and in his presencе; so as to exclude almost the possibility of impositiоn by substituting one paper for another, without detection by the testator himself upon his own ocular observation, and without exposing him to any risks from undue confidence. In Doe dem Wright v. Mansfield 1 M. & S. 294, Lоrd Ellenborough lays down this to be the rule ; that, when the devisor cannot see “the act doing,” that is out of his presenсe. And in the case of Casson v. Dade, 1 Bro. C. C. 99, Lord Tiiurlow held a will to be well еxecuted, which was attested at the window of an attоrney’s office, because the testatrix was sitting in her carriage and it was put back to the window of the officе, so that she “might see what passed so it is said in the other сase of Davy v. Smith, Salk. 395, that the testator might have seen the witnеsses “subscribe their names” if he would, and therefore that the will was well executed. We believe, indeed, that there is no instance, in which a paper has been sustained, where the attestation was under such circumstances, that the testator could not see what was done, sо as to protect himself upon his own knowledge against any dishonest substitution by the people, whom he is obliged by the law to select, and depend upon, as subscribing witnesses to his will.
Judgment affirmed.