27 N.J. Eq. 459 | N.J. Super. Ct. App. Div. | 1876
The question presented on the hearing of this appeal was, whether the paper propounded as the last will and testament ■of John W. Fisher, deceased, was signed by the attesting witnesses in the testator’s presence. At the signing of the will, the testator was lying in bed, in a small room which adjoined a larger one, from which it was separated by a partitition, in which were a door and a small window. The testator signed the will, in the presence of the witnesses, as he lay in bed. They signed in the large room. In that room, there were a table and a desk. At the latter, the will was drawn. The person who drew it was a New York lawyer, Mr. Fra.uklin Brown. This gentleman and Ole Erckson were the witnesses to the signing of the will by the testator. If the witnesses signed at the table, the testator could have seen them. If they signed at the desk, he could not. The attestation certificate states that the witnesses signed in the presence of the testator. Mr. Erckson, when the will ivas proved before the surrogate, made affidavit that he and Mr. Brown signed their names as witnesses in the presence of the testator. On the trial of the appeal before the Orphans Court, Mr. Erckson,
The decree of the Orphans Court will be reversed.