
    
      Silas Ray et al. v. Hill & Archer, ext'rs. of Calvert.
    
    Blindness does not incapacitate aman from making a will.
    If the testator, being unable to write, in place of his name make on the will the mark which he used to represent his name, it will be a sufficient signing within the meaning of the statute of 1789.
    If the witnesses to the will of a blind man attest and subscribe the will within the reach of the testator’s remaining senses, when he is conscious of what they are doing, and may, if he choose, ascertain that they are subscribing the same will that he had signed, — the subscribing will be “in the presence of the testator.”
    
      Before Wardlaw, J. at Abbeville, Spring Term, 1848.
    At the instance of the appellees, proceedings had been had before the Ordinary for proving the will of John Calvert in solemn form: the Ordinary had granted probate of the paper propounded, to the appellees, as executors: the appellants had upon appeal to this Court suggested many grounds of dissatisfaction with the Ordinary’s decision, and this was a trial of the question, as to the proof of the paper as a will, had de novo.
    
    The paper propounded purported to bear date 20 August, 1846, and to have been signed by the testator in the presence of Benton W. Stewart, William S. Robinson and Hugh Dickson, who subscribed their names as attesting witnesses “ in the presence of the testator.”
    It appeared that B. W. Stewart had since the date of the will died in Mexico.
    
      William S. Robinson testified as follows:
    “ I lived near to the testator, and knew him well. He was old and blind; could not hear as well as I do, but still could hear ordinary conversation, and had a good understanding. On the 20 August, 1846, a boy came for me, I don’t know by whom sent: I went in company with Stewart, who was also a neighbor: we found the testator and Mr. Dickson sitting together in an open passage of the testator’s house. The testator recognized Stewart and myself by our voices, and called our names. -Mr. Dickson said that we had been sent for to witness Mr. Calvert’s will — in the testator’s hearing; and told the testator that all was ready. The testator said “ well.” The will Was not then read, nor any thing said of its contents ; but the testator and Mr. Dickson seemed to have been talking about it before we came. The will was laid on a his book, the name “ John Calvert” being already written on mark it. The testator, as I had heard, never could write. The book was laid on the testator’s lap — a pen handed to him, and with his right hand guided by Mr. Dickson, he made a mark at the place where the blank had been left for a mark. The book with the will on it was then laid on a chair about two feet from the testator, and we all signed our names as Witnesses to it upon the chair, Stewart first, then I, and last Dickson. I think that the testator knew what we were doing when we signed — he might have heard the scratching of the pen — but 1 do not recollect that any thing was said during the signing, and I know that the testator, although he might have done so, did not touch me whilst I signed — -I believe he did not touch any of the other witnesses. The testator did not have the will in his hands after he signed it. Mr. Dickson said it was done, and the testator told him to take care of it. Soon afterwards Mr. Dickson went away, taking the will with him, and the testator conversed upon other matters.”
    
      Rev, Hugh Dickson, aged and infirm, was examined by commission, and testified in substance as follows:
    “I was for more than forty years a near neighbor of John Calvert. He died in January, 184T, and was at his death 92 or 93 years old: he was unlettered, but had a firm and vigorous understanding, and was a particularly cautious man who would not act when he did not understand. He had been blind 12 or 14 years before his death, but at the date of the will his mental capacity had undergone no perceptible change.
    “He sent for mé, and wished me to draw his will — gave me all instructions and desired mé to do all so that it would stand. I prepared the will according to his instructions at my his own house, writing there the name “John Calvert,” because mark I knew that he never could write. I took the will to him, and told him that witnesses were necessary. He mentioned Stewart and Robinson, and had them sent for. I read the will over to him — he seemed to listen attentively, and once or twice stopped me and called for the reading over of one or two sentences: when the reading was done, he expressed his entire satisfaction, and I believe fully understood the contents.
    “ He recognized Stewart'and Robinson when they came. I said to them in his presence that they were called to witness his will. He was sitting in the passage of his house. A large family Bible was laid on his lap, and I announced that we were about to proceed to the execution of Mr, Calvert’s will. I put the question, do you consider Mr. Calvert capable? The other witnesses answered, yes. Stewart and Robinson stood close to the testator on his right, I on his left. I put a pen into his right hand — he’adjusted it to his fingers. I held his hand and directed it, and he made the mark which is now in the space that had been left blank for a mark. Stewart having been then asked to sign, drew a chair near to the testator, removed the Bible from the testator’s lap to his own, and signed sitting in the chair: Robinson did the same, and then I — so near that the testator must have been aware of what we were doing. Holding the paper, I then asked what should be done with it, and the testator requested me to take charge of it till his death, which I did. Neither the testator nor any of the witnesses spoke during the signing. He did not touch them when they signed, but might easily have done so. He did not have the will in his hand, after it was signed.”
    , There is a good deal of contradictory testimony concerning the state of the testator’s sense of hearing, and some feeble attempt was made to show his want of capacity, and an undue influence exerted over him. Many points of law were discussed, and instructions as to them all were given to the j«iy-
    The following were amongst the instructions, and are those which seem to be referred to by the grounds of appeal:
    By the law, independent of any of the statutes which direct the mode of executing a will, and prior to them all, a testator must be of sufficient capacity, must be free from undue influence, and must fully know the contents of the paper considered his will. On these heads the jury must be satisfied: of the degree of proof which will serve they must judge: no statute or other law requires any prescribed number of witnesses. In proportion as a testator is old and infirm should the testimony be clear of his capacity and self-will: and where no presumption of knowledge can arise from the possession of the paper, or other circumstances which might suffice in ordinary cases, (as none can in the case of a blind man,) it is necessary that knowledge of the contents of the paper should be clearly established by proof of instructions or of reading over. If the jury be satisfied with this proof made by one witness, the law requires nothing more on this head.
    The signing required by the statutes which direct the 'mode of execution, may be done by making a mark: and it is of no consequence that the testator’s hand was held and guided by another person, if his will concurred and his body1 assisted.
    A blind man can make a will under the statutes, if sufficient care be observed.
    The words “in the presence of the testator” are usually, and in reference to ordinary men who can see, defined to mean within his sight, at reasonable •proximity : to cover the case of a blind man, that definition would be extended so as to be within the observation of the senses at reasonable distance. As, however, the will of one who can see is valid, although he may turn his head away whilst the witnesses are subscribing, so, in analogy, the will of a blind man is valid, if he be aware that the witnesses are attesting and subscribing his will, and have the power, at his discretion, by his touch and other senses, to ascertain that they are subscribing the same paper which he signed, although he may notin fact exert his senses when nothing hindered him. The question, then, carefully submitted to the jury, was, whether the witnesses attested and subscribed the will within the reach of the testator’s remaining senses, when he was conscious of what they were doing, and might, if he choose, have ascertained that they were subscribing his will. If nothing hindered him, his refraining from touching them and his will, or other-, wise ascertaining for himself what they were subscribing, did not affect the validity of the will. His Honor did not speak much of the degree of effort which might be required for an ordinary testator to see, or for a blind one to perceive by his remaining senses, and yet the will be good: He spoke of the case where, by mere volition, and an act so easy as reaching out the hand, the testator might have perceived and did not — . and used the common jih rases, do it easily, without effort. He noticed as material, the circumstance that the witnesses did not in any wise withdraw themselves from the observation of the testator, but whether with the purpose of remaining within his reach or not, seemed actually to have done so, whilst they subscribed. He used the term conscious; so also the terms sensible of, aware of: The jury certainly understood that it was necessary for the testator to have known what the witnesses were doing, and to have known that, when he had the ability at any moment he pleased to have touched the will and the witness who was subscribing.
    The jury found that the paper propounded was the last will and testament of John Calvert.
    The defendants appealed, and moved the Court of Appeals for a new trial, on the following grounds :
    
      1. Because the presiding Judge charged that the testator, though totally blind, was capable of making a will.
    
      2. The testator being blind, 93 years of age, and partially deaf, the will should have been read to him in the presence of all the attesting witnesses.
    3. Because his Honor erred in charging, that in reference to a blind man, the words of the statute, “ attested and subscribed in the presence of the testator,” would be complied with, if the witnesses subscribed the paper “ within reach of the testator’s remaining senses — within the power of his observation — he (the testator) being conscious that they were subscribing” — and that whether in fact he did or did not exert his senses, and by such exertion actually perceive that the witnesses were subscribing,- and within his reach, was immaterial, provided he could, had he made the effort, have done so.
    4. Because his Honor should have charged that it was not only necessary that the witnesses should subscribe the paper “ within the reach of the testator’s remaining senses, and within the power of his observation”- — but that the testator, by the exertion of his senses, should have known that they were so subscribing and within his reach ; and also by such exertion of his senses, have had actual perception of the act of attestation — otherwise it was done out of his presence.
    5. Because though the witnesses subscribed the paper within three feet of the testator, and where, had he known the fact, he might, perhaps, if he had pleased, by the sense of touch, have perceived them — yet the testimony was that in fact he did not do so — the attestation was therefore out of his presence.
    6. Because there was no testimony to show that the testator knew by the exercise of his powers of observation that the witnesses were subscribing the paper within the reach of his senses — nor were the jury instructed to inquire whether he did know it, and if so, by what means.
    7. Because, from the charge of his Honor, the jury may have regarded it as immaterial whether the testator knew that the attestation took place within three feet of him, or within ten feet of him, provided he was conscious that it was taking place at all.
    8. Because the word “ conscious,” as used by his Honor in his charge to the jury, was indefinite and equivocal, and may have been understood by them to mean any impression, knowledge, or belief whatever of the testator, whether derived from the exercise of his own senses, or taken upon trust from the assertions of those around him.
    9. Because, in reference to a blind man, the words of the statute, “ in the presence of,” are not satisfied, unless the testator actually knew by the positive exercise of his perceptive faculties that the witnesses were subscribing the paper with-jn of his senses, where he might, if he pleased, have touched them — and then if from the testimony it appeared that in fact he did not do so, the attestation is out of his presence.
    ^ Speers7s53.
    10. Because his Honor held that the testator though blind could sign by his mark — his hand being held and guided by another.
    11. The charge was in other respects erroneous — and the verdict contrary to law and evidence.
    
      Wilson, for the motion,
    
      Martin & Perrin, contra.
   Evans, J.

delivered the opinion of the Court.

The questions argued in this case are: 1st. Can a blind man make a will? 2d. Was this will signed by the testator, within the meaning of the Act of 1789? 3rd. Was it subscribed in his presence by the witnesses ? These I propose briefly to consider in their order.

1. It may be true, as stated in the argument by the appellant’s counsel, that there is no reported case in which it has been decided that a blind man may make a will, but the proposition is affirmed in all the elementary writers; and where-ever spoken of, is assumed as an undeniable fact. In Williams on Executors, 16, it is said a ': blind man may make a will, but certainly there is more difficulty in proving the requisites of the statute than in the case of one who can see.” In the case of Neel v. Neel, and in our own case of Reynolds v. Reynolds, the fact that a blind man may make a will is assumed, and referred to as illustrating the meaning of the requirement of the statute that the will must be attested and subscribed in the presence of the testator. This class of persons are not excepted by the Act, as infants, femes covert and persons non compos mentis are, unless they come within the last description, a proposition which I presume none will affirm. Even among those who are born blind, instances are not wanting'of the highest degree of mental culture and attainment, even in those sciences where it would seem sight was of the greatest importance: and among those who have become blind from disease or accident, are to be found some of the greatest names in ancient and modern times. I think therefore we may safely conclude that it is settled law that mere blindness does not incapacitate a man from making a will, and if no adjudged case on the point is to be found, it is because no one ever doubted it before.

2. The testator being unable to write made his mark. Is this a signing within the meaning of the statute ? Here again it is said there is no adjudged case which decides that the testator’s mark is equivalent to a signing. Such a signing to a bond or note or deed has always been held sufficient. In the case of McNinch v. Charles, the will was signed by the testator’s mark, he being too weak to write his name. It is true the question was not made, but if there had been any' thing in the fact it would hardly have escaped the notice of the very sagacious and learned attorney by whom that case was conducted. The same statute requires that the witnesses should attest and “ subscribe” their names. Subscribe Avould seem from its derivation more imperiously than sign to require writing. In many adjudged cases it has been held that it is no valid objection to a subscribing witness that he made his mark. This was decided in the case of Addy v Grix, and in our own case of Adams v. Champlin it was held a sufficient subscribing within the'statute, although one of the witnesses subscribed by the initials of her name. I come, therefore, to the conclusion that the mark of the testator, which he used to represent his name, is a sufficient signing within the meaning of the statute.

1 heigh, 29.

3. Did the witnesses subscribe in the presence of the testator? It is certainly true, as said by Williams, that in case of a blind man’s will there is more difficulty in proving that the requisites of the statute have been complied with than in case of one who can see. The commentators on these words in the statirte of frauds suppose that the object in requiring the subscription of the witnesses to be in the presence of the testator, was to prevent a surreptitious will from being imposed on him, by the witnesses subscribing a different paper from what he had signed. The word presence is derived by Richardson in his Dictionary from prae and ens, being before, in the sight of, in front of, in the view of, as contradis-tinguished from absent. Webster’s Dictionary is to the same effect. In the case of a will made by one who can see, we have numerous cases construing the words in reference to the object which seems to have been in the view of the law-maker, viz: the prevention of frauds. The construction may be thus stated. There must be an actual presencethe witnesses must be within the view of the testator. There must be no intervening impediment to prevent his seeing; — but the cases do not require it to be proved that he actually did see; it is enough if from the position in which he was he could have seen them subscribe. The substance of the cases requires that the subscription by the witnesses should be within the inspection of the testator, that he might, if he choose, look at them at the moment of subscription, and thus by means of his sight prevent the practice of any fraud. In the case of a blind man we have none of the light which adjudged cases shed upon a subject. It is said by one of the Judges of the Supreme Court of Virginia, in Neel v. Neel, before referred to, that the circumstance that the blind man had directed his 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 complied with, although he had lost the controlling power-e£. sight, and no fraud being alleged, has been held sufficient for probate.” The fact that it was attested by the witnesses in the same room where the testator was, though good if the testator could see, yet that might not suffice in the case of a blind man. The better rule I think is that intimated in the case of Reynolds v. Reynolds, in which it is said, — “It was correctly said in the argument that a blind man may make a will; but then he must first be made sensible through his remaining senses that the witnesses subscribed in his presence, which may be done by great care.” In the case of a blind man the superintending control which in other cases is exercised by sight must be transferred to the other senses; and if they are, or may, at his discretion, be made sensible that the witnesses are subscribing the same will that he had signed, I should think it ought to suffice. This is in accordance with the charge of the Circuit Judge. He says the question submitted to the jury was, “ whether the witnesses attested and subscribed the will within the reach of the testator’s remaining senses, when he was conscious of what they were doing, and might if he chose have ascertained that they were subscribing his will.” According to the evidence, the subscription by the witnesses was within two feet of the testator. Robinson says, — “ I think the testator knew what we were doing when we signed, — he might have heard the scratching of the pen.” Dickson says the signing was “so near that the testator must have been aware of what we were doing.” “He did not touch them, but he might easily have done so.”

1 Speers, 256.

I am of opinion the law was correctly stated to the jury by the Circuit Court, and the motion is therefore dismissed.

The whole Court concurred.

Motion refused.  