
    *Young by &c. v. Barner & als.
    January Term, 1876,
    Richmond.
    1. Wills — Evidence—Testamentary Capacity — Experts. —In controversies touching- testamentary capacity, as a general rule the evidence of witnesses, unless founded on fact, except in the case of experts, is entitled to but little weight.
    2. Same —Same —Same—Attesting Witnesses. — The evidence of the attesting witnesses is an exception to this rule. But if an attesting witness to a will attempts to impeach its validity, though his evidence will not he positively rejected, it is to he received with'the most scrupulous jealousy.
    3. Same — Same—Same—As Evidenced by Provisions of Will. — in all questions of testamentary capacity, particularly where the evidence is conflicting, the courts are much inclined to consider the dispositions contained in it. If these he in themselves consistent with the situation of the testator — in conformity with his affections and previous declarations — if they he such as might justly have been expected, this is said to he of itself persuasive evidence of testamentary capacity..
    4. .Same — Same—Same—Province of Jury. — The jury are the proper judges of the weight and credit due to the testimony of the witnesses, and their verdict, when sanctioned, as in this case, by the county and circuit judges who heard the evidence, is entitled to the highest respect in the appellate court. In such a case the deviation from the proof must he very plain and palpable to warrant the interference of the appellate court.
    5. Same — Same — Same—Presumption.—If the witnesses to a will are dead, or if there is a failure of recollection on their part, the court will often presume (the will being in other respects regular that the requirements of the statute have been complied with in the formal execution of the instrument.
    At a County court held for the county of Dinwiddie, in September 1874, a paper" writing- purporting to be the will of Mary H. Young, deceased, was offered for ^probate, when the court, on its own motion, ordered that a jury be summoned, to try at the bar of the court, and to ascertain whether any and if any how much of what was offered, was or was not the will of the testatrix. A jury having been em-panelled and having heard the evidence of witnesses, rendered the following verdict, viz: “We of the jury find this the will of Mary H. Young: ” And the court affirmed the judgment. Whereupon the said will was proved by the oaths of the subscribing witnesses thereto, and ordered to be recorded as the true last will of Mary H. Young deceased: And thereupon Wm. P. Barner, the father and heir at law of the testatrix, in open court prayed an appeal as of right, from said decision, to the Circuit court of the county of Dinwiddie; which was granted.
    The Will is as follows:
    In the name of God Amen. I Mary H. Young being of sound mind but infirm body, do make this my last will and testament. I wish my executor hereafter named, to pay all my just debts in the first place.
    I loan to my nephew Drury Young, my adopted child, my land and its proceeds during his natural life, my said executor to manage the same until he obtains his majority. Should he die before coming of age or after, I give and bequeath my land to my brothers.
    The residue of my estate I lend to my mother so long as she lives, and at her death I give it to my -sisters.
    I appoint my father, Wm. F. Barner, to be my executor and administrator of my estate, and request the court not to exact him to give any security for the same. *Given under my hand and seal this 13th day of June eighteen hundred and seventy-four.
    M. H. Young Seal.
    In presence of
    Caroline Hamilton,
    Tempe Boisseau,
    C. G. Zehmur.
    The case came on to be heard in the Circuit court in November 1874, when six witnesses were examined, and their testimony was taken down as it was given by a person appointed by the court. Prom this testimony it appears that two questions were involved in the case. The first was, whether Mrs. Young was capable of making a will when she signed the paper; and second, whether the witnesses attested in the presence of the testatrix.
    The will was prepared by Dr. C. G. Zeh-mur, her attending physician, and was signed by Mrs. Young a very short time before her death. She was a widow without children, had adopted the boy to whom she gives her land for his life, and was much attached to him, and she left a father, mother, and eight brothers and sisters.
    It appears that some person present suggested to Mrs. Young to make a will, and that Dr. Zehmur suggested that a nuncupa-tive will was not legal. It was then proposed to send for Mr. Epes to get him to write her will; but after the messenger left, the Dr. thinking that she would not live long enough for Mr. Epes to get there, proposed to write it. There were several persons present who made suggestions to her as to how she should dispose of her property; though these suggestions were not made by any person to whom *anything was given by the will. Dr. Zehmur says- — I gathered more from what she said to her friends how she wanted the will written than from any express statement from her. Had no suggestions been made to her she was competent.
    Having understood, as he supposed, what were her wishes, Dr. Zehmur went into the dining room, and there prepared the paper. Whilst he was absent she spoke of having paid two servants some money which she had not set down; and that another servant had got some corn.
    On the question of the capacity of the testatrix at the time of her signing the paper, Dr. Zehmur says — “I carried it to her after writing it, and read it to her; found she was sinking fast. After reading it to her, from her dullness I suspected that she did not understand what I read, and presented it to her, and told her to read it for herself. She took and glanced at it, and without reading it commenced signing it, and I saw her making marks down, and thinking she intended signing her initials, told her that would not do. She only made three straight marks for the letter M. My impression is I gave her the pen. I told her where to sign her name. When the paper was handed to her I do not think she had an intelligent understanding of the contents of the paper, but she knew it was a will.”
    Miss Boisseau was present when the will was read by Dr. Zehmur to Mrs. Young: did not hear her say a word; did not see her notice it at all.
    Mrs. Hamilton says — When I was requested by Dr. Zehmur to sign the will I did so reluctantly, because it was so different from what I had heard her say in health how she would dispose of what little she had. When the witnesses signed the paper I think she was *very nearly gone. She said she could not see us all. She spoke in monosyllables, but she recognized me. When Dr. Zehmur read the will and handed it to her, she neither by word or gesture signified her assent to it.
    Upon the question whether the witnesses attested in the presence of the testatrix,there was no doubt that Mrs. Hamilton attested in the porch out of sight of the testatrix; Miss Boisseau attested it in the door between the porch and the chamber in which the testatrix was lying, and might have been seen by her. The doubt was as to where Dr. Zehmur attested it. He says — Before she signed the will I requested all to leave the room except the witnesses. Her mother, I think, held her up in bed, and a book was handed her to sign the will upon. After signing it I took the will and presented it to the witnesses with the book. The subscribing witnesses were present when she' signed the will. * * I cannot tell where I signed it. I thought I signed it at the-side-table; that was more convenient than anything else I saw in the room. Until I 'came here I thought I signed first of the witnesses, but I find I signed last. From the manner in which my name is signed it most have been on something firm. I could not have signed as I did unless I had something firm to write on. I cannot say whether I was in or out of the room when I signed the will; my impression is I was in the room. I knew it was necessary that the testatrix should sign in the presence of the witnesses, but I did not know that the witnesses should sign in the presence of the testatrix. * * The witnesses signed it a very few seconds after she signed it. I have no recollection of when I signed the will. I do not remember whether or not I asked the witnesses to step into the porch. Miss Boisseau had no idea where Dr. Zehmur signed *the will. Mrs. Hamilton says — I was in the piazza when I signed it. I think Dr. Zehmur signed it either in the porch or in the dining room. I could almost declare positively that Dr. Zehmur did not sign it in the parlor, the room in which Mrs. Young was. * * There was not a table in the room sufficiently large for him to sign upon; I mean with sufficient room upon it. The table in the room was filled with vials, glasses, lamp, &c. After signing it, Dr. Zehmur brought the paper in the room and offered it to Mrs. Earner, and told her she was the proper person to keep it. Where he did sign it I am not prepared to say. He might have signed it near the door, where she, Mrs. Young, could have seen him, but I do not think she could. Dr. Zehmur did not sign it in the sick-room.
    Mrs. J. W. Young says — I was present when the testatrix signed the will. When Dr. Zehmur requested all but the witnesses to leave, I remained. * * I saw Miss Tempe Boisspau sign her name in the door; saw Dr. Zehmur standing at the side-table in the room, with paper, pen and ink in his hands; do not know whether he signed it or not. The table was a small table, and there was a lamp on it.
    The evidence having been introduced, and the cause fully argued, the court was of opinion, that it was not necessary to decide upon the testamentary capacity of tl}e said Mrs. Mary H. Young; but if it was, and this was the only question in the cause, then upon the evidence, and drawing the proper legal presumptions in such cases, the court was inclined to think the paper writing aforesaid ought to be admitted to probate as her will. But being- of opinion that .though the evidence clearly shows that Mrs. Young signed the will in the presence of all three of the subscribing witnesses, *and that all of them were present together at said signing by Mrs. Young; yet the evidence does not show that more than one witness, viz: Miss Tempe Boisseau, signed the will as a witness in the presence of the testatrix, and there was no evidence that either this witness or any of the others were requested by the deceased to attest said paper as her will. And though the court does not base its judgment upon this last fact, yet it is a pregnant circumstance in the case: and for these reasons the court, reversing the judgment of the County court, refused to admit to probate the paper writing aforesaid. To which opinion of the court, the appellant Drury F. Young, by his next friend, excepted; and applied to this court for a supersedeas; which was awarded.
    Bernard and Gregory, for the appellant.
    Collier, Budd and EJppes, for the appellee.
    
      
       Testamentary Capacity — Evidence of. — As to the admissibility of testimony to prove the capacity of a testator in making a will, see Whitelaw v. Sims, 90 Va. 590, 19 S. E. Rep. 113, where the court, citing the principal case, said: “The court also erred in excluding the opinions of witnesses having peculiar advantages of knowing as to the capacity of the testatrix." See also, Cheatham v. Hatcher, 30 Gratt. 56, and note McMechen v. McMechen, 17 W. Va. 684; Hartman v. Strickler, 82 Va. 238.
    
    
      
       Same — Attesting Witnesses. — The testimony of an attesting witness against the validity of a will is received with jealousy and suspicion. Cheatham v. Hatcher, 30 Gratt. 56, and note; Tucker v. Sandidge, 85 Va. 571, 8 S. E. Rep. 650.
    
    
      
       Same — As Evidenced by Provisions of Will. — In Hartman v. Strickler, 82 Va. 237, citing the principal case, the court says: “Where the provisions of the will accord with the affections and previous declarations of the testator, and are such as might have been justly expected, that is persuasive evidence both of testamentary capacity and freedom of action.” See also, Martin v. Thayer, 37 W. Va. 38, 16 S. E. Rep. 489.
    
   Staples, J.,

delivered the opinion of the court.

This is a controversy as to the probate of a will. It involves two questions, one of testamentary capacity, and the other relating to the formal execution of the instrument. A jury was empanelled in the County court, and a verdict rendered in favor of the will; which was approved by the presiding judge. An appeal was taken to the Circuit court. The judge of that court, after hearing the evidence, was inclined to think that the testatrix was possessed of •sufficient testamentary. capacity: he however held that the writing was not executed in accordance with the requirements of the statute.; and for that reason refused to admit the will to probate. From that decision an' appeal was taken to this court. The case has been argued here, both "’hipen the question of testamentary capacity, and that of the formal-execution of the instrument. It must therefore be considered by us in both aspects.

In controversies touching testamentary capacity, the evidence being a mere matter of opinion, is generally of a conflicting character.

As a general rule such evidence unless founded on facts, except in the case of experts, has but iittle weight with the courts and juries. An exception to this rule is allowed as to the subscribing witnesses, who are regarded in the law as placed around the testator to guard against fraud, and to ascertain and to judge of his capacity.

But it is also held upon good authority, that a person who signs his name as a witness to a will, by his act of attestation solemnly testifies to the sanity of the testator. If he afterwards attempts to impeach the validity of the will his evidence is not to be positively rejected; but it is to be received with the most scrupulous j ealousy. 1 Jarman on Wills 77, and cases cited in note 1.

In all questions of testamentary capacity, particularly where the evidence is conflicting, the courts are inclined much to consider the dispositions contained in the will. If such dispositions be in themselves consistent with the situation of the testator, in conformity with his affections and previous declarations — if they be such as might justly have been expected — this is itself said to be persuasive evidence of testamentary capacity. The rationality of the act goes to shew the reason of the person. This rule has been repeatedly applied in the Fnglish courts in cases of doubtful capacity from age or sickness. 1 Jarman, page 82, note.

In the case before us, the testatrix, had no children *of her own, but she had an adopted son, a nephew, to whom she was greatly attached. To him she gave her real estate for life, and at his death it was to pass in fee to her brothers. The residue of her property she gave to her mother for iife, and then in fee to the sisters of the testatrix. One of the witnesses states that these provisions are different from what he heard the testatrix say in health she intended to make. What that disposition was we are not told. But to whom could she have given her estate more deserving her just regard and bounty than these devisees, . her adopted son, mother, brothers and sisters. It is true her father was also living at the time, but he, of course, receives the benefit of the bequest made to the mother. A will containing provisions so just in themselves, so thoughtful, is very persuasive evidence 6f a disposing mind and memory. It is very true, as counsel have insisted, that suggestions were made at the time by persons in the room to the testatrix as to the objects of her bounty; but it is equally- true that no suggestions were made by any one who is provided for in the will, and that all the provisions are in- conformity with the directions given by the testatrix herself. Her declarations, her recollection of money she had paid two of her servants, and of grain gotten’by another, occurring whilst the will was being prepared, show that she was of disposing mind and memory, down to within a few moments of the execution of the will. When the various provisions were read over to her, she was raised in her bed and signed her name without hesitation or- serious difficulty. There is nothing, certainly nothing positive or reliable, to show that at that time, or at the time of the attestation of the witnesses, she was not fully conscious of all that was being done by herself and them.

*It is unnecessary however to enter into a minute discussion of the evidence. Upon well settled principles the jury were the proper judges of the weight and credit due to the testimony of the witnesses, and their verdict when sanctioned by the two judges who heard the evidence, is entitled to the highest respect in this court. In such case the deviation from the proof must be very plain and palpable to warrant the interference of an appellate court. Jessee v. Parker’s adm’rs, 6 Gratt. 57; Greer v. Greer’s adm’r, 9 Gratt. 330; Dudleys v. Dudley’s adm’r, 3 Leigh 471; 484.

The next point for consideration is the question of the due execution of the instrument. Upon this point, as upon that of the testamentary capacity, the decision of the lower court is of course entitled to the greatest respect; but the force of that consideration is much diminished by the fact that the verdict and judgment in the County court were reversed by the circuit judge upon the question of the formal execution of the will. The matter is therefore before us in a great measure unaffected by the weight generally due to the opinion of the trying court.

Our statute prescribes that the witnesses shall subscribe the will in the presence of the testator; but no form of attestation shall be necessary. The cases do not very accurately define what is meant by the phrase “in the presence of the testator.” Upon this subject the judges of this court have held very conflicting opinions. Neil et als. v. Neil, 1 Leigh 6; Moore v. Moore’s ex’or, 8 Gratt. 307; Sturdivant v. Birchett, 10 Gratt. 67; Nock v. Nock’s ex’ors, 10 Gratt. 106.

But whatever may have been the conflict of opinion upon other points, it is well settled that though the attestation of the witnesses is in a different room, and even in a different house, it is good as being in the ^presence of the testator, if within the range of his vision, so that he might have seen it. It is not necessary that he should actually have seen the attestation. It is sufficient that he might have seen it if he chose to do so. Casson v. Dade, 1 Bro. C. C. 69.

Another rule is equally well settled; and that is when the attestation is in the same room with the testator, it is presumed to have been made in his presence until it appears that he could not have seen it. If the witnesses to the will are dead, or if there is failure of recollection on their part, the court will often presume (the will being in other respects regular) that the requirements of the statute have been complied with in the formal execution of the instrument. Such presumptions are absolutely essential to the protection of property and the security of titles. Were it otherwise the most important and solemn instruments would often fail to take effect by the death, or from the mere failure of attesting witnesses —real or assumed — to recall each and every formality presented for the execution of testamentary papers.

Bearing these principles in mind, we may easily determine whether the paper offered as a will is sufficiently proved to justify its admission to probate. There are three subscribing witnesses. It is certain that one of them did sign, and another did not sign, in the presence of the testatrix. The real difficulty is in respect to the third witness. This witness is Dr. Zehmur, the attending physician, and the draftsman of the will. He went out of the room in which the testatrix was lying into a porch, and from the porch into the dining room, where there was a table, upon which he wrote the will. He then returned to the sick room with the pen and ink and paper in his hand. The testatrix having signed in the presence of the witnesses, *one of those then went into the porch out of the range of the testatrix’s vision, and subscribed her name; the second signed while standing in the doorway, with the paper resting upon the door-facing. Where then did Dr. Zehmur make his attestation? His statement is, ‘ ‘I cannot tell where I signed the will. I thought I signed it at the side-table; that was more convenient than anything I saw in the room. Until I came here I thought I signed first of the witnesses; but I find that I signed last.” Again' he says: -“I can’t say whether I was in or out of the room when I signed the will. My impression is, that I was in the room.” It is impossible to read the testimony of this witness without feeling that the witness had originally a very strong conviction upon his mind that he had subscribed the will in the same room with the testatrix. This conviction, it is obvious, was not in any degree lessened by his own reflections, but by the statements of others; conversations and discussions doubtless occurring in his presence before the trial in the Circuit court. The evidence of Mrs. Hamilton, it is highly probable, had much to do in creating the doubt at the time of the trial upon the mind of the witness in respect to his locality. She says: “I think Dr. Zehmur signed either in the porch or in the dining room.” But she gives no satisfactory reason for this opinion. It is at best a mere conjecture. Again she says: “I could almost declare positively that he did not sign in the parlor. ’ ’ One of the reasons assigned for this opinion is, that she and Miss Bois-seau did not see him sign, as they would, had he been in the room at the time of his attestation. It is however much more probable that their whole attention was engrossed with the dying friend before them, than the act (unimportant to them) of subscribing a paper by a witness. '*'They might, or might not, have seen the signing; it is impossible to say. The. other reason given by Mrs. Hamilton for her opinion is, that there was no convenient place in the room for writing; as the only table in it was covered with vials and bottles.”

But Dr. Zehmur does not concur with Mrs. Hamilton as to the side-table. He says, “I thought I signed it at the side-table; that was more convenient than anything else I saw in the room.” It is apparent throughout that Dr. Zehmur, though much impressed with the somewhat positive declarations of Mrs. Hamilton, still adhered to his original convictions, that he attested the will in the room in which the testatrix was lying. And his recollection is to some extent confirmed by Mrs. Young, another witness, who says: “I saw'Miss Tempe JBois-seau sign her name in the door; I saw Dr. Zehmur standing at the side-table in the room with pen and ink and paper in his hands.” The most just and reasonable inference from all the evidence is, that Mrs. Hamilton having signed the will in the porch, handed it to .Miss Boisseau, who signed while standing in the door-way, and then delivered it to Dr. Zehmur, who signed in the room where all the parties were then present.

Be this as it may, we have here the strong impression of the subscribing witness one way, the negative testimony of another witness another way. We have the opinion of the circuit judge giving the greatest weight to the negative testimony, the verdict of the jury and the judgment of the county judge maintaining the subscribing witness, ■ when the events were fresher in the recollection of all the witnesses. • How ought an appellate court to decide under such circumstances? Surely every reasonable presumption ought to be made in favor of the proper execution *of the will; a- will just and beneficent in all its provisions, and as to which there is not a suggestion or even a hint of fraud, undue influence, or unfair dealing.

ITor these reasons the judgment of the Circuit court must be reversed, and that of the County court affirmed.

Anderson, J., was in great doubt as to the sanity of the testatrix when she signed the will, and whether the witness TJehmur-signed in her presence; but he yielded to the views of the court.

Judgment of the Circuit court reversed; and judgment of the County court affirmed.  