By the Court —
Lyon, J., delivering the opinion.
1. The question before the jury was, whether the will was signed by the subscribing witnesses in the presence of the testator, as required by the Act of 1st January, 1851, pamphlet, page 104 ? At the time of their attestation the testator was in a different room to that in which the will was signed by the witnesses. That fact raised a presumption, that they, the witnesses, did not sign in his presence. Lamb vs. Girtman, S. C., 26th Georgia, 630. And this presumption was not overcome, (which was necessary) by any evidence on the trial; but on the contrary, it was strengthened, and made almost conclusive by the evidence. We will not discuss the evidence, as that labor has been saved to us by the able and searching exposition of the Judge who tried the cause, whose decision we endorse and adopt as our own. Let it speak for itself.
2. The subsequent recognition by the witnessés of their signatures to the testator’s, does not help the cas§ for the propounder of the will. This is not a signing in the presence of the testator and of each other, and if we should dispense with one recognition of the statute we might with another, until the whole object of the statute, whatever that is, should be’defeated. This we are not inclined to do, but choose rather to adhere to the statute as it is, and in doing so, know that we cannot err.
Let the judgment be affirmed.