The Ordinary.
On tbe 14th day of March, 1874, Jacob Gr. Mandeville executed an instrument of writing as his last will and testament. It was drawn by Benjamin Roomé, a scrivener, for whom he had sent. The testator signed it with his mark (he had, to a very great extent, lost the use of his right arm and hand, through an accident), in the presence of Mr. Roome and Mr. "William D. E. Merrick, a neighbor who had been sent for to witness the will. The testator, at *246the time, was in his last illness. He died the nest day. He lay in his house, on a bed in a small bed-room in the rear of the kitchen, and separated therefrom by a partition wall, in which was a door. The bed was in the northeast corner of the bed-room; the partition was on the south of the bedroom, and the door, at its nearest point, was about eight or nine feet distant from the head of the bed. The testator, lying in the bed, could see a person standing at the door. The door opened outwards into the kitchen. In the kitchen, standing sidewise against the partition, and entirely out of sight from the place where the bed stood, was a table, with a leaf on each side. The door was partly open. The witnesses, after the testator had signed and declared the will, took the paper out of the bed-room into the kitchen, and on that table signed their names. The paper was not afterwards taken or shown to the testator, but was *247handed, after the witnesses had signed it, to the testator’s wife, by the scrivener. The orphans court of Morris county refused to admit the paper to probate, on the ground that it was not attested by the witnesses in the presence of the testator.
In Wright v. Lewis, B Rich. SIS, the testator, being in ordinary health, after executing his will on a piazza near a doorj» left his seat to be occupied by the witnesses while subscribing their names, and stepped into and remained in an adjoining room, from which he might have seen the attestation, although none of the witnesses pretended to know where he was when they signed, nor could he have seen them from the seat he was occupying when they immediately afterward went into that room.
In Ray v. Hill, 8 Strobh. S97, the witnesses, when signing, were so near to the testator, a blind man, that he could have heard the scratching of their pens.
In Tuclcer v. Oxner, IS Rich, 1J¡,1, when the witness rose from the table where he had been attesting her will, the testatrix, whom he had not noticed before, was standing in a doorway leading into another apartment, and looking towards him. [The decision, however, went off on another point.]
In Bynum, v. Bynum, 11 Ired. 68S, the witnesses signed at a table near the head of a bed where the testatrix was lying very sick; she could see the table and their arms, but perhaps not the paper on which the will was written.
In Cornelius v. Cornelius, 7 Jones B98, the table was on the testator’s left side, seven or eight feet away, and a little back of where he was lying, but he could have seen the pen and paper by turning his head half over, which he was physically capable of doing—and one witness said he observed that the testator did once turn his head during the attestation.
In Hill v. Burge, IS Ala. 687, the testator was lying in bed with his head propped up and averted from the attesting witnesses, but by turning his head he could have seen them, although some of them, ■while attesting, had their backs toward him. See, also, Pope v. Pickett, 61 Ala. 684.
In Moore v. Moore, 8 Graft. 807, four judges were equally divided on the question of the validity of an attestation made in a passage-way' adjoining the room where the testator lay. He could not have seen them while lying down, but by leaning over the foot of the bed or by getting out of it, either of which he had strength to do, he could have seen them.
In Sturdivant v. Birchett, 10 Graft. 67, three out of five judges held that an attestation made in an adjoining room, in such a position that it was impossible for the testator to see the act, would be validated by their acknowledgment of the genuineness of their signatures, made immediately afterwards to the testator.
In Nock v. Nock, 10 Gratt. 106, the witnesses signed, at a bureau, in an adjoining room, sixteen or seventeen feet from the bed where the testator was lying with his head raised up, and from which he could, through an open door, plainly see the witnesses, excepting their forearms and hands, while writing.
In McElfresh v. Guard, 88 Ind. 408, the will, after execution by the testatrix, was taken into an adjoining room and attested by the witnesses at a stand or desk, in a position where she might have seen them through a door which stood open.
In Turner v. Cook, 36 Ind. 189" court="Ind." date_filed="1871-05-15" href="https://app.midpage.ai/document/nevins--otter-creek-township-draining-co-v-alkire-7038683?utm_source=webapp" opinion_id="7038683">36 Ind. 189, the witnesses attested the will on a table in a corner of the testator’s room, opposite to where he lay, with nothing intervening. See, also, Bundy v. McUnight, 46 Ind. 508, 509.
In Mason v. Harrison, 5 Harr. & Johns. 480, the testator was sitting up in bed with his back towards the witnesses while they were signing in the same room, in a place where he could have seen them by turning his head, and this he was capable of doing.
I am satisfied, from the evidence, that the testator was of sound and disposing mind when the will was made, and that it was his free act.
Objection is made to the publication, on the ground that it appears to have been made before the will was signed, .and that it was a mere acknowledgment by the testator of the instrument “ to be his hand and seal for the uses and purposes therein mentioned and expressed.” The testimony shows clearly that he acknowledged it to be his last will .and testament. Both of the witnesses say so, and it is evident that that was his language from the fact that, at first, *248and nntil an explanation was 'made to him, he declined to acknowledge that it was his last will because it was the first he had ever made, and also because he might get well and make another. If the publication was made before the testator signed, it was a sufficient compliance with the provision of the statute in that respect. Mundy v. Mundy, 2 McCart. 290; Erickson v. Fields, 3 Stew. 634.
In Builer v. Benson, 1 Barb. 526" court="N.Y. Sup. Ct." date_filed="1847-09-13" href="https://app.midpage.ai/document/butler-v-benson-5457209?utm_source=webapp" opinion_id="5457209">1 Barb. 526, 530, an attestation in the testator’s presence was deemed still necessary under the New York statute. But see Lyon v. Smith, 11 Barb. 124" court="N.Y. Sup. Ct." date_filed="1851-05-06" href="https://app.midpage.ai/document/lyon-v-smith-5458055?utm_source=webapp" opinion_id="5458055">11 Barb. 124, Ruddon v. McDonald, 1 Bradf. 352" court="N.Y. Sur. Ct." date_filed="1850-12-15" href="https://app.midpage.ai/document/ruddon-v-mcdonald-6139296?utm_source=webapp" opinion_id="6139296">1 Bradf. 352 ; Vernam v. Spencer, 3 Bradf. 16" court="N.Y. Sur. Ct." date_filed="1854-03-15" href="https://app.midpage.ai/document/vernam-v-spencer-6139380?utm_source=webapp" opinion_id="6139380">3 Bradf. 16, 20.
In Ambre v. Weishaar, 74 III. 109, the testatrix was sitting in her bed,, propped up, and could have seen the witnesses while signing in the next room, the door between the rooms being open, and a straight line from her position through the doorway striking about the centre of their table.
In Meurer’s Case, 44 Wis. 392" court="Wis." date_filed="1878-01-15" href="https://app.midpage.ai/document/will-of-meurer-6602537?utm_source=webapp" opinion_id="6602537">44 Wis. 392, the testator, during and after executing his will, sat up in his bed, and from that posture could plainly see the witnesses attesting his will in the next room, through an open doorway.
The following are instances of what has been deemed not a sufficient signing in the testator’s presence:
In Edelston v. Spealce, Holt 222, 3 Mod. 259, Comb. 156, the witnesses subscribed their names in a hall adjoining the room where the testator lay, but in such a place that he could not see them.
In Machell v. Temple, 2 Show. 288, the witnesses withdrew out of sight into another room, at the request of the testator, because the noise in his sick-room disturbed him.
In Broderick v. Broderick, 1 P. Wms. 239, 4 Vin. Abr. 534, the witnesses,, for the ease of the testator, went down stairs into another room, to attest his will. See, also, Onions v. Tyrer, Id. 3J¡3.
In Clark v. Ward, 1 Bro. P. C. 137, the witnesses subscribed at a window in a passage-way, where they could see but part of the bed, and the testator, lying thereon, could not see them.
In Tribe v. Tribe, 13 Jur. 793, 1 Robt. 775, the testatrix Jay in bed with the curtains drawn, and her back turned toward the witnesses, who were signing at a table in the same room.
But I am satisfied, from the evidence, that the provision of the statute which requires that the witnesses sign in the presence of the testator, was not complied with. The certificate of attestation declares that the witnesses signed in the presence of the testator, and that fact throws the burden of proof to the contrary on the opponents of the will. Tappen v. Davidson, 12 C. E. Gr. 459; Allaire v. Allaire, 8 Vr. 312, S. C. in error, 10 Vr. 113. There is no evidence that-the witnesses signed in the presence of the testator, but the-*249proof is to the contrary. The most that is said in support of the attestation is, that if the witnesses had signed (standing or sitting) at the west end of the table, the testator might have seen part of their bodies, but could not see their hands. Not only is it not proved that they signed (standing or sitting) at that end of the table, hut it appears, very clearly, that they signed sitting at the table, behind the partition, entirely out of view of the testator, where he could not possibly have seen them from the bed.
In Wright v. Manifold, 1 M. & 8. 291f, the testator could not, from his room, have seen into the room where the witnesses signed, without putting his head out into the passage-way which connected the two rooms; although, as the witnesses were retiring from his room, he called upon his attendant to assist him in rising.
In Ellis’s Case, 2 Curteis 895, the witnesses were in an adjoining room, where they could neither see the testator nór be seen by him, although they were so near that they could hear him breathe.
In Colman’s Case, 8 Curteis 118, folding doors between the two rooms were open, being tied back, but the table on which the witnesses wrote was so situated that the testator could not possibly have seen it.
In Norton v. Bazett, Dea. & Sw. 259 (5 Am. Law Beg. 52), the witnesses were clerks of the testator, and called by him from an outer office into his own, where he was sitting with his back towards the door. The will was written on two separate sheets, the second (see Bond v. Seawell, 8 Burr. 1778; Gass v. Gass, 8 Humph. 278; Horsford’s Case, L. B. (8 P. & D.) 211) of which he signed, and they, his table being full of papers, took into their room for attestation. When they returned he was standing up, but otherwise relatively in the same position as before, and from which it was impossible for him to have seen them while signing.
In Kiltich's Case, 8 8w. & Tr. 578, the deceased could, by changing her position in bed, have seen the witnesses sign her will in another room, but the proof was that she did not do so.
In Violette v. Therriau, 1 Pug. & Bus. (N. B.) 889, the testator had been paralyzed, and was, when his will was executed, unable to rise from his bed without assistance. A small table stood at the foot of his bed, and was concealed therefrom by the foot-board of the bed rising above it, so that, although he could see the persons of the witnesses, their arms and hands and the paper on which they wrote on the table, were invisible. “ ■
*249Mr. Roome, the scrivener, when he first testified, was asked what he did after the testator made his mark to the will. He answered that Mr. Merrick (the other witness) and himself wrote their names as witnesses to the will. The question wTas then put-to him, “ Then and there, in the presence of the testator?” and he answered, “No; we had nothing to write our names on, and we wrote them just *250outside, in the kitchen, on the table, standing right by the door that enters into the bed-room, not more than eight or ten feet off; the door was open.” To the question, “Could the testator see you sign your names from where he lay ?” he replied, “I think not; it was around the door-post of the kitchen; this kitchen joins the bed-room.” "When he was subsequently (more than a month afterwards) recalled, he said that if he stood at the west end of the table when he signed, he would have been in open sight of the testator, but he added that he was not positive whether he’ stood there or not, and had no distinct recollection on the subject. He further said that, if he did stand at that end of the table, the testator, though he could have seen him, could not have seen him and Mr. Merrick write. He also said that Mr. Merrick, when he signed, sat at the front of the table, near the southwest corner, and that the testator *251could not, he thinks, see him in that place. He also said that, when he drew the will, he sat in the place just mentioned, at the side of the table. While he cannot remember whether he was standing or sitting when he signed, Mr. Merrick testifies positively on the subject. He says that he himself signed sitting at the table, and that he thinks it could not have been possible for any one on the bed on which the testator lay, to see him. He also says that, after he had signed, he rose from the chair and Mr. Eoome sat down in it, at the same place, and signed his name there. It is clear, from the testimony, that if the witnesses had sat or stood at the west end of the table, which was within a few inches of the door, though, perhaps, part of their bodies could be seen from the bed, their hands could not; they could not be seen to write. Both witnesses testify, then, that when they signed they were in a room other than that *252in which the testator lay, and that he could not have seen them when they signed. The object of the. provision of the statute that the witnesses shall sign in the presence of the testator, is to prevent substitution and fraud upon him. An attestation made in the same room in which he is, is, prima facie, an attestation in his presence. On the other-hand, an attestation made in another room .is, prima facie, not made in his presence. Neil v. Neil, 1 Leigh 6" court="Va." date_filed="1829-02-15" href="https://app.midpage.ai/document/neil-v-neil-6801090?utm_source=webapp" opinion_id="6801090">1 Leigh 6 ; 1 Greenl. on Ev. (12th ed.) § 272 ; In the goods of Colman, 3 Curt. 118.
In Robinson v. 'King, 6 Ga. 539" court="Ga." date_filed="1849-05-15" href="https://app.midpage.ai/document/robinson-v-king-5551257?utm_source=webapp" opinion_id="5551257">6 Ga. 539, the testator signed his will in bed, and was not able to get up without assistance. The witnesses wrote their names thereto on a piazza adjoining his room, and about ten feet from him. There was a door communicating with the room, 'but their relative positions were such that they could not see each other.
In Brooks v. Duffett, 23 Ga. J¡Jpl, a will was executed by the testator in bed, towards evening, and, for the sake of seeing better, the witnesses stepped to a door, which, when opened, swung against the side of his bed, so that, without changing his position, it would have been impossible for him to see them, and he was too weak to notice anything that'was going on.
In Reed v. Roberts, 26 Ga. 291,\, the testator, in extremis, was lying in a bed with four high posts, having a counterpane stretched across those at the head to protect him from the air. After he had signed, the will was taken behind the head of the bed, to a chest against the wall, some seven or eight feet distant, and attested. The proof showed that he was too feeble to change his position without help.
In Lamb v. Girtman, 33 Ga. 289" court="Ga." date_filed="1862-06-15" href="https://app.midpage.ai/document/lamb-v-girtman-5554455?utm_source=webapp" opinion_id="5554455">33 Ga. 289, the testator signed his will at a small table in a hallway, and then, being in feeble health, withdrew to his room adjoining, accompanied by a witness, who returned to the others, and then they all signed. The testator, when afterwards noticed by them, was lying in the ordinary attitude on his bed, and in that position could not have seen the witnesses when signing.
In Graham v. Graham, 10 Ired. 219, the witnesses went into another room to sign at a chest standing against the partition, two or three feet from the open door. The bed in which the testator lay stood also against the partition,.with its head nearly opposite to the chest, so that the testator could, by turning his head, see the backs of the witnesses as they sat at the chest writing, but he could not see their faces, arms or hands, nor the paper on which they were writing.
In Reynolds v. Reynolds, 1 Spears 253, the testatoi’, after being raised to sign his will, sank back in his bed, and the witnesses went to a table in a hall and signed their names, The testator could not see them, as he lay, and although he had strength to rise sufficiently to 'see them, yet he did not rise.
In Jones v. Tuclc, 3 Jones 202, the testator could not see the witnesses while signing his will in another room, without raising himself up on his elbow, but this the witnesses thought him capable of doing, because they saw him turn himself several times in his bed.
In Orndorf v. Hummer, 12 B. Mon. 619" court="Ky. Ct. App." date_filed="1851-01-22" href="https://app.midpage.ai/document/orndorff-v-hummer-7378168?utm_source=webapp" opinion_id="7378168">12 B. Mon. 619, the table on which the witnesses wrote stood just behind the head of a lounge on which the testator lay, and four or five feet therefrom. He could not, from his position, have seen the witnesses at all, and it seemed doubtful whether he could, without assistance, have changed his posture.
- In Neil v. Neil. 1 Leigh 6" court="Va." date_filed="1829-02-15" href="https://app.midpage.ai/document/neil-v-neil-6801090?utm_source=webapp" opinion_id="6801090">1 Leigh 6, the testator, when two of the witnesses signed at a table by his bed, lay with his back to them, and his sight was poor and the light in the room dim. He could not rise alone.
In Boldry v. Parris, 2 Cush. J33, the testatrix and one witness signed in her room, and then that witness took the will into an adjoining room, where it was signed by the other two witnesses, out of the testatrix’s sight altogether.
In Fdelen v. Hardy, 7 Harr. & Johns. 61, the testator, after signing, requested the witnesses to retire, and they went into an adjoining room, separated from the other by a plank partition; there was no direct communication between the rooms, nor could testator have pos sibly seen them. See Russell v. Falls, 3 Harr. & MeHen. J¡57.
In Cornelius's Will, 14 Ark. 675" court="Ark." date_filed="1854-01-15" href="https://app.midpage.ai/document/in-re-the-will-of-cornelius-6538434?utm_source=webapp" opinion_id="6538434">14 Ark. 675, attestation in the presence of testator was held to be unnecessary. Also, Abraham v. Wilkins, 17 Ark. $93.
In a testator’s “ presence ” means not only his corporeal presence, but also that he must be mentally capable of executing a will. Might y. Price, Doug. $41; Hudson v. Parker, 1 Moberts. $4; Watson v. Pipes, S3 Miss. 451; McGuire v. Kerr. $ Bradf.'$44i Jackson v. Moore, 14 La. Ann. 31S; Hall v. Hall, 18 Ga. 40" court="Ga." date_filed="1855-05-15" href="https://app.midpage.ai/document/hall-v-hall-5552304?utm_source=webapp" opinion_id="5552304">18 Ga. 40 ; Aurand v. Wilt, 9 Pa. St. 54.
Whether a witness’s subsequent acknowledgment to a testator of an attestation made out of his presence, is sufficient, see Chase v. Kittredge, 11 Allen Jfi, reviewing all the prior cases; Vaughan v. Vaughan, 13 Am. Law Meg. 735; Downie's Will, 4% Wis. 66; Duple v. Carridon, 40 Ga. 13$; Hindmarsh v. Charlton, 8 H. of L. Cas. 160.
As to the effect or conclusiveness of an attesting clause, see Tappen v. Davidson, 13 C. E. Gr. 459; Barnes v. Barnes, 66 Me. $86; Howard’s Case, 5 Mon. 199; Carpenter v. Denoon, 39 Ohio St. 879; Hands v. James, Com. 581; Croft v. Pawlet, 3 Sir. 1109 ; Lloyd, v. Moberts, 13 Moore P. C. 158; Crawford v. Curragh, 15 Up. Can. 55; Swinford's Case, L. M. (1 P. & D.) 630; Magland v. Huntingdon, 1 Ired. 561; Pool v. Pool, 5 Ala. 13" court="Ala." date_filed="1843-01-15" href="https://app.midpage.ai/document/thrash-v-sumwalt-6501901?utm_source=webapp" opinion_id="6501901">5 Ala. 13; Hall v. Hall, 18 Ga. lfi; Clark v. Donnorant, 10 Leigh 33; Eatheree v. Lawrence, 33 Miss. 633; Deupree v. Deupree, 45 Ga. 415" court="Ga." date_filed="1872-01-15" href="https://app.midpage.ai/document/deupree-v-deupree-5556077?utm_source=webapp" opinion_id="5556077">45 Ga. 415; Chaffee v. Baptist Soc., 10 Paige Ch. 85" court="None" date_filed="1843-01-23" href="https://app.midpage.ai/document/chaffee-v-baptist-missionary-convention-5548689?utm_source=webapp" opinion_id="5548689">10 Paige 85; Leaycraft v. Simmons, 8 Bradf. 85; Penniman’s Case, 30 Minn. 31" court="Minn." date_filed="1882-11-24" href="https://app.midpage.ai/document/collins-v-st-paul--sioux-city-railroad-7964137?utm_source=webapp" opinion_id="7964137">30 Minn. 31/5; and how far an attesting witness may qualify or vary it (White v. Trustees Sc., 6 Bing. 310; Lucas v. Parsons, 34 Ga,. 64O; Boyens's Will, 38 Iowa 854; Dewey v. Dewey, 1 Mete. 849; Barnes v. Barnes, 66 Me. $86; Mose v. Allen, 1 Cold. 38; Jenkins's Will, Ifi Wis. 610; Weld v. Sweeney, 85 III. 50; Otterson v. Hofford, 7 Vr. 139).—Rep.
In Graham v. Graham, 10 Lrcd. 219, the witnesses subscribed out of the testator’s room, and in such a situation that, though he could see their bodies as they wrote, he could not see the paper. It was held that it could not, in any proper sense, be said that the signing was done in his presence. See, also, Jones v. Tuck, 3 Jones (N. C.) 202 ; Boldry v. Parris, 2 Cush. 433; Downie’s Will, 42 Wis. 66" court="Wis." date_filed="1877-01-15" href="https://app.midpage.ai/document/in-re-downies-will-6602271?utm_source=webapp" opinion_id="6602271">42 Wis. 66; Hindmarsh v. Carlton, 8 H. of L. Cas. 160; Doe v. Manifold, 1 M. &. S. 294, 296; Tribe v. Tribe, 1 Robt. 775; Norton v. *253Bazett, Dea. & Sw. 259; Goods of Trimnell, 11 Jur. (N. S.) 248. Though the testator be blind, it must appear that be cmild have seen the witnesses bad be bad bis eye-sight. 1 Wms. on Ex’rs 93; 1 Jarm, on Wills 75 note.
The decree of the orphans court will be affirmed.