1 Leigh 6 | Va. | 1829
To understand correctly the instruction given by the circuit court to the jury which tried the issue of devisavit vel non, we must not take it as an abstract proposition, but (as it was given) in connection with and as applicable to the case proved in evidence. Thus it was proved, (as is clear to me from the bill of exceptions), that the whole transaction of signing and attesting the will', took place in the testator’s bed-room j and that the testator, before the witnesses subscribed, being asked if he acknowledged the will, ana wished them to attest it, answered affirmatively. These facts enter into the instruction of the court: as if it had been said to the jury, in such a case as this, where the whole transaction took place in one room, and the testator acknowledged the will,- and desired the witnesses to attest it, if you believe that his mind was sufficiently sound to know the necessity of the precautions prescribed by the act, and he could have had himself turned in bed so as to see the witnesses, or have had them moved so that he could have seen them, and he did neither, still it was an attestation in his presence. And this instruction, I strongly incline to think was correct.
Our statute (taken from 29 Car. 2. c. 3) requires, that the attestation of the witnesses shall be in the presence of the testator. The object of this law, (as the cases shew, and the counsel admitted), was correctly expounded by the judge, when he told the jury, that “ signing in the presence of the
Lot us now examine, more particularly, the cases which have been decided on this subject.
The next case is Davy v. Smith, 3 Salk. 395. Upon a trial at bar, the question was, whether the witnesses to; a will had pursued the statute of frauds, in subscribing their names; and it was resolved, that where the testator lay ip a bed in one room, and the witnesses went through a small passage into another room, and there set their names, at a table in the middle of the room, and opposite to the door, and both that and the door of the room where the testator lay, were open, so that he might see them subscribe their names if he would, though there was no positive proof, that he did see them subscribe, yet that was a sufficient subscribing within the meaning of the statute; because it was possible, that the testator might see them subscribe; and, therefore, per curiam, if the witnesses subscribe their names in the same room where the testator lies, though the curtains of the bed are drawn close, ’tis a good subscribing within this statute; because, if ’tis in his power to see them and what is done, it shall be construed to be in his presence. This case is liable to all the remarks made on the last; die attestation was in another room, separated from the testator’s by a passage; the circumstances furnished the same facility of substituting a false will; and the situation and distance of the testator, the same difficulty of detection. Yet, because he might by possibility have seen the witnesses, the will was supported. Of the court’s remark, with respect to a subscription in the same room with the curtains drawn close, I shall speak more particularly when I come to that class of cases.
In Casson v. Dade, 1 Bro. C. C. 99. the court decides, that it is not necessary for the testator to be even in the same house with the witnesses; for there, a lady sat in her carriage in the street, and signed her will, and the witnesses took it into an attorney’s office and subscribed; and the will was supported, because it was proved, by a person in the.
The next attempt was to prevail on the courts to support wills attested out of the room of the testator, and also out of his sight; but this attempt failed; and it was decided, in many cases, that though the signing was in a room contiguous, yet the devise would be void, unless the testator were in a position, from which he might, if he chose, see the witnesses subscribe, without changing his situation. Of this class, were the cases of Eccleston v. Speke, Carth. 79. Broderick v. Broderick, 1 P. Wms. 239. Machell v. Temple, 2 Show. 288. and Doe v. Manifold, 1 Mau. Selw. 294. This last case was much relied on hy the counsel for the appellants; and lord Ellenborough was considered as haring pronounced the law to be, that no matter how near the parties might be together, in the same room, yet if the testator could not from his situation sec the attestation, it was not in liis presence. If I understood lord Ellenborough thus, I should be compelled to say, that it was an obiter dictum, not only unsupported, but contradicted, by the whole current of authority: an obiter dictum, because the case before him was not of a subscription in the same, but in a-different room: unsupported, because there is no case, or even dictum, that I have met with, which takes the position, that where the signing is in the same room, it must also he in the sight of the testator, to constitute presence. But I do not understand lord Ellenborough as the counsel did. The case before him was one in which the testator executed the will in his bed, and there being no table in that room, the witnesses went into .another, divided from it by a passage, into which the doors of both rooms opened, and they
Let us now see, what the judges have said of the effect of a subscription, where the testator and the witnesses are together in the same room. And here it is worthy of remark, that in the lapse of one hundred and fifty years, since the
In Longford v. Eyre, 1 P. Wms. 740. the lady Cluterbuck having a power to devise certain lands during coverture, made her will, to which there were four witnesses: one was beyond sea; two swore, that they saw the will executed, and subscribed the same in the presence of the testatrix; the third swore, that he subscribed the will, as a witness, in the same room with, and at the request of the testatrix. Lord Cowper doubted as to the execution of the will, but would declare no opinion till farther application. It came on again before lord Macclesfield; and it was pressed upon him, that this third witness signing in the same room, was necessarily a signing in the presence of the testatrix. To this argument he replied, “ that the bare subscribing the will by the witnesses in the same room, did not necessarily imply it to be in the testator’s presence : for it might be in a corner of the room, in a clandestine, fraudulent way; and then it would not be a subscribing by the witness, in the testator’s presence, merely because in the same room; but (he adds) here, it being sworn by the witness, that he subscribed the will at the request of the testatrix, and in the same room, this could not be fraudulent, and was therefore well enough.”
In the cases of Shires v. Glasscock, and Davy v. Smith, (the two earliest) the court laid it down, that if the witnesses subscribe their names in the same room where the testator is in bed, though the curtains of the bed be drawn close, it is a good subscribing; because, if it is in his power to see them and what is done, it shall be construed to he in his presence. The point to be sure, was not directly before the court; but yet it shews their opinion, and has been constantly quoted since as law. The proposition is laid down broadly,
The last case I shall cite, is Tod v. The Earl of Winchelsea, Car. & Payne, 488. decided in 1826. The question was, whether the will of the duke of Roxburgh was duly attested under the statute of frauds. One of the subscribing witnesses was dead. Another stated, that after the duke had signed the will, as far as he recollected, he took leave of him, and himself with the other witnesses, and the writer, went into an adjoining room called the writing-room, the door between the rooms remaining open; and that the witnesses signed their names on a table; but what sort of a table, or where it stood, he did not remember, nor could he say whether the duke could see them when they signed,. The deposition of the other subscribing witness stated, that he believed the will was attested in the room where the duke was, but that he was not positive. It, however, appeared, that when the witness had giyen a former deposition on this subject, he then thought the will was attested in the adjoining room. It was proved, that as the duke lay in bed, he could only see one end of the writing-room; and that there were three tables in it, one in the middle of the room which ss he lay in bed ho could not see, another which he could
The proposition involved in the instruction given by the circuit court in this case, is, that if a testator, lying sick in bed, and so feeble as not to be able to turn his body or head without assistance, be raised up, and setting on his bed-side, signs his will upon a table at the side of the bed; and, after requesting the attesting witnesses to subscribe it as witnesses, be laid down in the bod, with'his back to the table, so that, without turning his body or head he cannot see the witnesses at, or the will upon, the table; and the witnesses, under these circumstances subscribe the will on the table; the will is duly attested and subscribed by the witnesses in the presence of the testator, provided he was in
Courts of justice have always, and very properly, leaned strongly in favour of the validity of wills fairly made, and when there is n'o imputation of fraud. But there is a limit prescribed by positive law, beyond which we cannot go. The witnesses must subscribe in the presence of the testator, in some sense.
The cases upon this subject (most of which have been noticed by judge Carr) have, accordingly, gone to this extent, that where the testator and the witnesses are together, for the purpose, as they usually are, of transacting the business of attesting the will, and so their attention specially called to that object; if they be in such a situation, that the testator may, if he pleases, by the exertion of his own volition and physical powers, without materally changing his position with respect to place, and without the assistance of others, see the witnesses subscribe; that is a subscribing in his presence. And, perhaps, the cases justify us in saying, that this is, under such circumstances, a presumption or conclusion of law, against which no evidence will be received. When they are in the same room, the prima facie presumption is, that the testator might see the attestation and subscription, without extraneous assistance; and, without evidence to the contrary, this would be taken for granted. But this is not necessarily so. In the case of Tod v. Winchelsea, in which chief justice Abbott instructed the jury, that if the will was subscribed by the witnesses in the room, where the testator was, there was no doubt of its due execution, diere was no evidence to repel the presumption. In that case, too, the testator might have had the moveable table in the room adjoining that in which he was, the door being open, moved with the witnesses within his view, and die will there subscribed by them. And in the case of Doe v. Manifold,
As to the case of a blind man: whilst vision and a reasonable degree of proximity constitute presence, in the case of one who has the faculty of vision, some other criterion must be adopted in the case of a blind man, one circumstance of which must be proximity; but what other circumstances must concur with that, is not settled by authority, and must be left to be decided when the case occurs.
I think the decree should be reversed, and the cause remanded, to have a new trial of the issue of devisamt veil non, upon which no such instruction is to be again given.
The object of the law, in requiring a will to be attested in the presence of the testator, is to prevent a surreptitious will being substituted and imposed on him for the will he intends to publish. To effect this object, the witnesses and the will must both be in the presence of the testator; he ought to see, or at least be able to see, both. He may, it is true, turn away his eyes, so as not to see what is doing, or he may look on, the whole time. It will rarely happen, that the witnesses engaged in the attestation, are at
Suppose the witnesses retire to a table standing behind a desk in the testator’s chamber,'where he lying sick in his bed, makes his will; and over which desk he can even see the heads of the witnesses, but neither the table, the will, nor the act of attestation; is this a good will within the act ? and will it be considered as duly attested, unless it can be shewn, that they retired there for fraudulent purposes? Is the power to require the witnesses to come from behind the desk and expose their acts to view, though no such requisition be made, equivalent to the power of actually seeing them if he choose to cast his eyes on the scene of action ?
Suppose there is a folding screen, impervious to the sight, round the foot or side of the bed, and the witnesses retire behind that out of his view; is the power to direct it to be folded or shut up, so as to expose tire table and witnesses to view, to be substituted for that power to supervise the transaction, which the simple act of casting his eyes on the spot affords ? must it be proved, that they retired behind the screen, in order to be out of view and for fraudulent purposes ?
Suppose the table at which the witnesses subscribe, be just within the door of an adjoining room, a few feet from the testator’s bed, who has his face to it, and when open, can as plainly see the table, as if it were in his chamber, or more so, there being more light there than is agreeable or proper in the bed-room of the sick; but in order to exclude this disagreeable light from the sick bed, the door is usually kept shut; and, without any real or apparent intention of fraud, it is actually shut at the time of attestation: is the power to require it to be opened, to be substituted for the power to see if the party had chosen to cast his eye that way ?
The object of the law being to prevent frauds, it prescribes the forms which are to be pursued, and which prima, facie are sufficient to guard against fraud. All attestations not coming up to these requisites, may be fraudulent, and are in fact so considered in law, without proof of actual fraud; and no proof of actual fairness can avail or supply die requisites of the law. The most credible witnesses who ever lived may prove that they saw the will subscribed, heard it read to the testator and approved of by him; that he requested them to attest; that they all took hold of the will, carried it into another room, having received it from the hands of the testator; that they all continued to hold it, until each attested it; and all returned with it and delivered it to the testator again: yet it is no will of lands unless he could see them attest. Say, that they attested it in the doorway, where their acts could have been seen, had not the door been closed to shut out offensive light from the sick bed ,- it is no will. According to all the cases, to make it an attestation in the presence, the door must be open : no case goes so far as to affirm, that if the testator had had his suspicions awakened, and could have commanded the door to be opened, it is the same thing as if it had been opened.
It is not to be supposed, that testators, especially in their last illness, are suspicious of those around them, or that they are in a frame of mind, if they are of body, to guard, by any unusual effort, against frauds. The law undertakes to guard them. They may still be defrauded. But, if the attestation be according to law, the fraud must be proved; if not, the law avoids the will, as though actual fraud were proved, and no proof of fairness can make it good.
The opinion of die judge below, in this case, makes this a good will, although the jury might believe, not only that the testator did not actually see the attestation, but that he could not see it, any more than if it had been in another
It is true the cases say, that proof of actual seeing is not necessary, the presence being such that he can see if he will; but where is the case which says, that it is a good attestation notwithstanding proof on the other side, that he hot only did not see, but could not without assistance, any more than he could see through a panel door what was doing behind it, and which he was unable to open without assistance ?
If the doctrine contended for be tenable, why shall not a will, executed in an adjoining room, be good, where the testator could direct the table to be set out within his view whereat to attest it Pi''Why not, if attested in an obscure corner in the same room, because he might have ordered it to be done in a part of the room where he could see what was doing ? The law is not that it shall be attested in his
I can see no magic in the four walls of the testator’s bed chamber, which shall make him more present at an act of attestation, which in reality he cannot see without calling for assistance, than he is at a similar act performed a few feet from him, which he can see, even without assistance, by a slight change in his position. Neither the law nor the decisions under it, it seems to me, contemplate any such fictitious presence. If the act be done in the same room, prima facie he is really present; that is, he can really see; and„ nothing further being shewn, he is presumed to have supervised the act. But if it is in a remote corner, though within the four walls, it must be shewn that he was so situated, in point of position and light, as that he could see, or it is deemed in law fraudulent and void, without proof of actual intended fraud. This, I think, is the sum and substance of the law, and all the decisions; and that to go beyond it-,’'i,< dangerous.
I think the instruction given to the jury was wrong.
The statute makes it essential to the validity of a will of lands, that it shall be attested by two or more witnesses, in the presence of the testator. The object of this requisition, is to enable the testator to see, that those
I am, therefore, of opinion, that the instruction of the circuit court to the jury, was improper; for, according to the case, as stated, the testator is supposed to have been in such a situation, that he could not see the attestation, since he lay in his bed, with his face turned from the witnesses, and was so weak as to he unable to turn his face towards them. The fact, that the testator might have caused himself to be turned over in his bed by his attendants, or that he might have caused the witnesses to take a position in the room where he might have seen them, (without, however, doing either), is not entitled to any weight. A power of that sort exists in every case: in every case, the testator may cause his own situation, or that of the witnesses, to he so changed as that he may see the attestation. Such a power was expressly held to be insufficient in the eases cited at the bar, of Doe v. Manifold, and Tod v. The Earl of Winchelsea. A contrary decision would have the effect of substituting the confidence of the testator in his attendants and the witnesses, for that presence of the testator which the law requires. It. is going far enough to say, that the law may he satisfied, by the testator being in such a situation, that he may, from that situation, and without the aid of others, supervise the attestation.
To arrive at a correct decision m this case, the first object is to ascertain the true construction of our statute, taken from the british statute of 29 Car. 2. and to have a correct understanding of the cases decided on that statute by the english judges. The terms of both statutes require, that the attestation should be in the presence of the testator. What constitutes presence, I think, is cotrcctly settled by the adjudicated cases. Whore the witnesses
It is admitted, that it need not be proved, that the testator actually saw the attestation of the will, if he had the power to see it; and that he may dispense with this portion of his controlling influence, and turn his back upon the witnesses when they attest the will. This admission must be on the principle, that his actual presence and confidence in the witnesses supply the place of actual vision, in a case in which
All the cases in which the attestation is in the same room, in the presence of the testator, and in which no fraud is charged, proceed, if I understand them, on this course of reasoning. The terms of the statute being complied with, in every particular, to invalidate the will, fraud must be charged and proved. In the last case that I have seen, Tod v. The Earl of Winchelsea, chief justice Abbott said, in charging the jury, “ as to what shall be held to be in the presence of the party, it cannot be necessary that it should be in his sight, as the testator might have lost his sight, and in such cases other circumstances have been held to be sufficient.” The circumstances, that the blind man had dictated the will, and when it was read to him, directed attestation to be made; it being attested in the same room, in his presence, and the terms of the statute being complied with, though he had lost the controlling power of sight; and no fraud being alledged; have been held sufficient. Nor is there any thing,
In the first cases, the presence of the witnesses for the purpose of attesting the will, in the same room, and their actual attestation there, is sufficient, unless fraud be charged. In the second, where the attestation is in another room, the testator must have actual vision, or the power to have it, without the aid of others, or the spirit of the statute is not complied with. In such case, it is important, that he should have the power to see within himself, because otherwise his control over the attestation would be wanted; to go farther, and to admit, that the power to see the attestation of the witnesses made in another room by the aid of others, would be sufficient, (as in the case of actual presence in the same room), would open as wide a field for controversy, as the requisition of a power in the testator himself without aid from others, to see the attestation, where it is made in his actual presence in the same room; which has been before remarked on. If, in the case of attestation in another room, the power of the testator by the aid of others, to" see it, was admitted; the witnesses not being in bis actual presence, could not know, that he could have aid; nor could others, in another room, intending to palm a false will upon him, know that such aid was within his power. His control over the attestation would be gone, and the statute defeated in its letter and spirit. The letter of the statute is complied with, by the control, which actual presence and the power to see by the aid
But it may be said, that, in the case before us, the fraud comes out in the fact, that the testator, though he could not turn himself in his bed, so as to see the attestation of the will, neither required or was assisted by others to turn him. Unless he was incompetent, from mental infirmity, to ask for aid, if he wished it, (which is not pretended), it is nothing more than the case in which the testator turned his back upon the attestation, which was said to be of no importance. If ho had asked to be turned over, or that the witnesses should change their position, that he might see the attestation, and either had been refused, and the will attested behind his back, it would have been a clandestine attestation, and the will invalid. But nothing of the sort is pretended. He possessed a mind competent to make a will, in all respects, and exercised every control over the attestation of it, except the controlling power of actual sight of it, which is not required by the statute, either in its terms or in its spirit.
For authority for the distinction I take, between the cases in which the attestation is in the actual presence of the testator, and those in which the attestation is by construction in his presence, T refer to the cases already cited by judge Carr. Nor will I repeat the instruction of the circuit court to the jury : it must be taken in relation to the facts stated in the hill of exceptions; and if so, it was wrong on the principle contended for; it ought to have gone further; it ought to have informed the jury, that though they might find upon the evidence, that the testator had the power of himself to turn him towards the witnesses, yet as his sight was dim, and the light bad, it ought to he proved, that he could, from his actual position, of his own accord, have seen
By the majority of the court, Decree reversed.