
    Thomas Aiken, Executor, etc., vs. Elizabeth Wickerly.
    The Court was requested by proponent to instruct the jury that if they found a fair balance of testimony in favor of the will they should find a verdict for proponent. The Court re* fused, and omitted to charge at all upon the point. Held, that the jury should have been charged as prayed, or in other terms conveying to them that a preponderance of evidence would be sufficient.
    In testamentary cases nos more than a preponderance of evidence is required to authorize a verdict for proponent.
    
      The burden of proof in such cases is upon proponent throughout the case.
    The statute which requires a will to* be attested and subscribed by the witnesses in the presence of the testator is complied with if the act be done when the testator is mentally observant of it, and having his eyesight, may, if he choose, as be is circumstanced, see it by some slight, efl'ort which his ailment does not prevent. When thus able to see, his omission to do so, caused solely by his indifference, will not impair the execution.
    Error to St. Joseph Circuit.
   Opinion

by Graves, J.

This Ivas an appeal from an order of the Probate Court determining that the instrument mentioned in the record as the last will and testament of John Aiken, deceased, had been duly proved and established. An issue was framed in the Court below and tried by a jury, who found that the instrument was not such last will and testament. The proponent of the will requested an instruction to the jury that if they found a fair balance of testimony in favor of the will they should find a verdict for the proponent, which the Court refused. It was Urged that it was uot a fair balance of testimony, hut a preponderance, which the law requires- generally in civil cases, and even then the preponderance must he of proof, not of the instruments of evidence.

Ile/cl, that the. refusal so to charge was error. The request follows the language of the Supreme Court of Vermont'in. a recent case, and the jury would have received it as meaning precisely the same thing, which contestant’s counsel admit would have been proper. It is. the duty of the J udge to use such tex-ms as will answer the object to be attained, which isto convey to the jux-y the legal knowledge required. If the instruction was coxTect, and not calculated to mislead, it was proper, even though properly sxxbject to a lawyers criticism, as to its terms.

The question was also discussed whether the law did not require something more than a preponderance of evidence to justify a verdict for the proponent.

Meld, that the proper rule of evidence is that which has always obtained in civil actions, and that between that rule and that applied to trials for crime there is no middle course sufficiently definite to he adopted.

An exception was taken to a charge that the burden of proof was.upon proponent and continued with him throxxghout the case. It was claimed that after the proponent had made a prima facie case the presumption of law in favor of competency was sufficient evidence on that subject, and thereupon the burden was on the contestant to show the disability of the testator.

Reid, that this position is untenable. The proof of capacity is not merely cast in the first instance upon those averring it, but it abides there during the trial.

The case involved a discussion of the meaning of the statutory provision that a will must be “attested and subscribed in the presence of the testator’’ as applicable to the facts ot this case.

Held, that the testator must have knowledge of what is going forward and bo mentally observant of the specific act in progress, and, unless he is blind, the signing by the witnesses must occur where the testator, as he is circumstanced, may see them sign if he chooses to. If he could see and does not choose to do so, through neglect to turn his head, or something of that sort, the signing is good. It is otherwise if his ability depends upon his power to make the requisite movement and his ailment prevents it. The charge in this case might have led the jury to suppose that the testator’s visual perception of the signing was indispensable, even though through indifference he neglected this.

Some other objections were held not well taken, but the Court, from the issues expressed above, set the judgment aside and ordered a new trial.  