Walker v. Walker

67 Miss. 529 | Miss. | 1890

Woods, C. J.,

delivered the opinion of the court.

The issue devisavit vel non was tried before the chancellor, the parties having waived a trial by jury, and the issue was found for the contestees. We must treat the finding as that of a jury, and decline to disturb it unless unsupported by evidence.

Briefly, the facts are that the will was prepared at the dictation of the testator about ten days before its execution, and that on that occasion the three subscribing witnesses were called in at the request and desire of the testator to attest the.execution of the instrument. There is evidence to the effect that, after the witnesses had been informed of the purpose in calling them in, and had been introduced into the testator’s sick chamber, the drawer of the paper handed it to the testator, with the remark, “ here is your will,” and that the testator, after calling for his spectacles, and putting them on, either read or glanced over the will, and signed it, thereupon, in the presence of the witnesses. There is, also, evidence that immediately after the testator had signed, he inquired of the witnesses whether they could identify his signature, and that, after examination, they declared their ability to do so. The whole evidence (with only a single variant note) declares that the instrument was at once attested by the subscribing witnesses, in the testator’s room, within a few feet of him as he lay upon his bed, and that the testator could have witnessed this attestation, if he had so desired, having only to turn his head to see what was done. That he was abundantly able physically to move his head is perfectly manifest.

On this statement of' fact, it plainly appears that the instrument was dictated by the testator and signed by him, with knowledge of its character and contents, as and for his will. This meets all the requirements of our statute as to publication,'provided the subscribing Tvitnesses attested by signing in the testator’s presence. We have no doubt, from all the evidence, that the witnesses signed in the presence of the testator. He might readily have seen the attestation, if he wished to do so, by merely turning his head upon his pillow. “ When the testator, having a mental consciousness of the act performed, in consequence of the position in which he lies upon his bed, does not actually see the attesting witnesses subscribe their names, the attestation will be good, provided he had the physical ability to change his position, and by so doing could see the proceeding.” Watson v. Pipes, 32 Miss. 451. The attestation would appear, therefore, to have been altogether sufficient.

Affirmed.