Miller v. McNeillMiller v. McNeill
- Reporters:
- Before:
- Woodward
The opinion of the court was delivered by
Woodward, J.A testator and the subscribing witnesses to his will were assembled around the same table at the same time; all signed á will in the presence of each other, but the subscribing witnesses wrote their names before the testator wrote his. The plaintiff in error thinks this was an insufficient attestation, and some observations of Sir H. Jenner Eust, in 3 Curteis R. 117, 648, upon the requirements of the English statute, which is more exacting in its terms than ours, are relied on for upsetting this will.
Our statute contemplates, undoubtedly, a signature by the testator, and then a signing by witnesses in attestation of that signature, when witnesses subscribe at all; but where a transaction *223consists of several parts, all of which occur at the same moment, and in the same presence, are we required to undo it because they did not occur in the orderly succession which the law contemplates ? No language of our statute of wills imposes any such necessity upon us, and we would not decide anything so unreasonable, except under stress of very positive statutory language. The execution and attestation of the will were contemporaneous, or rather simultaneous acts, and we will not regard the question, who held the pen first — the testator or his witnesses. The attestation was well proved by the surviving witness, and proof of the signature of the deceased witness raises the presumption that he attested duly: 9 Barr 156.
If more discussion of the point be desired, it will be found in the charge, and in the subsequent opinion of the learned judge of the court below..
The judgment is affirmed.