17 Pa. 60 | Pa. | 1851
The opinion of the Court was delivered by
The principal question has regard to the onus. The evidence is clear that the testator was'unable to write his name when the will was executed; that he rallied a little towards morning, and that he lived about a week; but there was no evidence that he was, in any part of the period, able to sign with his own hand. The will was undoubtedly executed in his last sickness ; and, in the absence of counteracting proof, the presumption is that his inability continued till his death. So far, then, as concerned want of bodily power, there was no ground of exception to the execution.
According to the decision in Vansant v. Boileau, 1 Bin. 444, Samuel A. Loomis, the executor, an attesting witness, and a party to the issue, was liable for costs and therefore incompetent. According to Snyder v. Bull, ante, p. 54, he was not interested when the will was executed; and had his testimony been indispensable to the establishment of it, we might be at a loss for a reason to deprive the legatees of the benefit of it, merely because he had voluntarily acquired a subsequent interest in the event. But it was not necessary. The presumption is that he was ready to sustain his attestation with his oath; and proof of his signature by two persons, was equivalent to proof of execution by a full witness. As, however, 'he might have contradicted it, the plaintiffs
Judgment reversed and venire de novo awarded.
