
    George B. Tucker vs. E. Oxner and Wife.
    
      Will — Probate—Attestation.
    Where the Will was attested by the three subscribing witnesses at different times, and one of the three, who attested in the presence but not very near the testatrix, did not see her sign the Will, nor hear her acknowledge her signature ; Held, that the Will was not proved.
    BEFORE MUNRO, J., AT UNION, SPRING TERM, 1859.
    This was an appeal from the Ordinary, who had refused to admit to probate an instrument bearing date the 21st June, 1835, and purporting to be the last will and testament of Eanny Tucker, who died some time in 1857.
    The instrument was in the handwriting of J. Tucker, one of the sons of Eanny Tucker. The three subscribing witnesses were George Ashford, Samuel Gordon and Jerry Kingsley. Ashford testified that the signature much resembled his, but he had no recollection of the transaction. Gordon testified, that at the request of J. Tucker he went into his mother’s house to attest her will; there were two -rooms to the house — a large and a small one; Mrs. Tucker was in the large room through which he passed ; the rooms were divided by a partition with a door in it; • he passed into the small room with J. Tucker; the will was on a table on the right hand side of the fire place; he sat down and signed his name between the signatures of the two other witnesses, and after doing so he rose up, and as he turned round he saw Mrs. Tucker leaning against the door post of the partition door ; if she was standing in that position when he signed the will she could have seen him sign it; she did not speak to him when he entered the house nor when he left it; he lived that year with Mrs. Tucker; he never heard her speak of her will. Kingsley was dead ; his signature was proved and it was shown that he was a man of good character. The signature of Mrs. Tucker to the will, was otherwise sufficiently proved, , and it was shown that she bad abundant capacity to make a will. It was also shown that she frequently afterwards spoke of her will, and gave reasons for desiring to leave one.
    The jury found against the will, and the plaintiff appealed and now moved this Court for a new trial.
    
      Bobo, Dawhins, for appellant,
    cited 8 Hill, 68 ; 8 Eich. 130 ; 1 Jarm. 71, 73 ; Hobby vs. Bobo, MSS. 1832 ; McNinch vs. Charles, 2 Eicb. 235; Wright vs. Lewis, 5 Eich. 212; 2 Green. Ev. § 678 ; 3 Stark, on Ev. 1693.
    
      Fair, Thomson, contra,
    cited Act 1824, 6 Stat. 228; 10 Bac. Abr. 510; 2 Curt. Ec. E. 326 ; Jarm. 110, 119.
   The opinion of the Court was delivered by

Glover, J.

The decision of this case. depends upon the due execution of the paper propounded for probate, and the points made limit our inquiries to the sufficiency of the signing and of the attestation.

It has been objected to the attestation that the witnesses were not present at onej and the same time. They are required not only to see the testator sign, and thereby to prevent the fraudulent substitution of another paper, but, in contemplation of law, they are present to protect him from undue influence and to judge of his capacity; and for the effectual performance of these duties the Legislature may have intended that they should have attested simul et semel. The construction of the Act, however, has been otherwise, and it has been held, that the witnesses may attest and subscribe severally and at different times. Another objection to the attestation is, that Samuel Gordon did not subscribe in the presence of the testatrix. Whether she saw him subscribe depends upon her position at the time. If she then stood-at the door post she might have seen because she was “ within view,” which words have been held synonymous to in the presence.” A more important objection is, that Gordon did not see the testatrix sign. Witnesses are required to attest the signing, and the words of the Act plainly imply that they shall attest the factum of signing. But a more liberal construction has been adopted, and it is now well settled that the acknowledgment of the testator that it is his handwriting — his will, &c., is a sufficient attestation of the act of signing. It did not appear that either attestator saw the corporal act of signing, except it be inferred from the proof of Kingsley’s handwriting who is dead; and in the absence of such proof effect can be given to the signing in no other way than by showing the explicit acknowledgment of the testatrix made to the witness and in reference to the will which she requested him to attest and subscribe. There was no evidence of any declaration made by the testatrix to Samuel Gordon that this was her will, or any request that he should attest her will. Gordon says, he never heard her speak of her will either before or after the attestation. Other persons heard her speak of a will; but this is not an acknowledgment superseding the factum of signing in the presence of the subscribing witness, as it was neither made to him nor identified the will he had attested, unless the identity may be inferred from the fact that she spoke of a will by which no provision was made for Mrs. Oxner. To permit such an acknowledgment to supply the place of actual signing would be a greater departure from the language of the Act than has ever been authorized.

We are, therefore of opinion that Samuel Gordon did not see the testatrix sign the will either by writing her name in his presence, or by any subsequent acknowledgment of her signature to him, and that the evidence sustains the verdict of the jury.

Motion dismissed.

O’Neall, Wardlaw, and Munro, JJ., concurred-

Motion dismissed.  