
    IN RE SNOW’S WILL.
    (Filed April 9, 1901.)
    1. WILLS — Testamentary Capacity — Execution — Attesting Witnesses.
    
    In making a will, tlie testator must actually see, or be in a position to see, not only the witnesses, but the will itself, at the time of signing the same.
    .2. EVIDENCE — Conflicting—Questions for Jury.
    
    Where there is conflicting evidence as to a matter, it should be left ro the jury.
    .'3. APPEAL, BONDS — Time for Filings — Acts 1889>r eñ. 185.
    
    An appeal bond, filed and sent up with the record, Is In time within Acts 1889, ch. 135. i
    Isr tick matter of the will of Ice Snow, beard by Judge E. W. Timberlake and a jury, at November Term, 1900, of Surry County Superior Court. Erom a judgment sustaining the will, the caveators appealed.
    
      Thos. H. Sutton, for the propounder.
    
      Watson, Buxton & Watson, for the caveators.
   MoNtgombky, J.

On the trial of the issue devisavit vel non there was a verdict sustaining the will, and a judgment was rendered by the Court for the propounders. At the time of the execution of the will and the attestation of the witnesses, about ten days before the death of the testator — -he was a very sick man and had to be propped up in bed to sign the papar. The only exceptions before tire Court by the appellants, the caveators, is upon the refusal of his Honor to give the two special instructions numbered 3 and 4, they being in the following words:

3. That in order to find the witnesses subscribed in the presence of the testator, as contemplated by the statute, they must find that Ice Snow should have evidence of his own senses to the subscribing by the witnesses, just as he should to a signing for him by another, by his direction and in his presence, so as to exclude the almost impossibility of imposition by substituting one paper for another without detection by the testator; and if they find that he was in such condition that he could not tell whether they signed the paper offered as his will or some other paper, they should answer the issue “No.”

4. That upon the testimony as a matter of law, the will offered had not been proved, nor attested as required by statute, and the propounders are not entitled to recover.

The fourth prayer was properly refused, for while there was conflicting evidence both as to the mental capacity of the testator and his ability to see the attestation of the witnesses, and so the matter had to be left to the jury to be decided by them under proper instructions by the Court.

The third prayer the propounders were entitled to, or to one of equivalent import and meaning; and his Honor gave such a one substantially, though not in the same terms. His instruction to the jury was as follows: “In order that the will should have been duly executed, the decedent must be in such a situation, such a position, as will enable him, if he will look, to see the paper-writing Avhich he. has signed as it is being subscribed by the witnesses!; he must have the opportunity, through the evidence of occular observation, to see the attestation of the paper from the position, or situation in which he is, if he will look, and thus exclude the almost impossibility of a substitution of the paper which he has signed with another by some other person.” That instruction is in the language of this Court used in the case of Burney v. Allen, 125 N. C.,314, on the same point, and where the circumstances as to the facts of signing and attestation were very similar. If the word condition, in the third prayer may be taken as bearing upon tbe testamentary capacity of tbe testator, bis Honor in tliat connection instructed tbe jury correctly tbat tbe testator must bave known, at tbe time of tbe signing of tbe paper, tbe nature of tbe business, tbe property be was disposing of, and to whom be was giving it, and tbat if they were not satisfied tbat be bad such capacity they should answer tbe issue “No.” Tbe evidence in this case introduced by the-caveators, tending to prove lack of testamentary capacity, was very strong. Tbat tending to show testamentary capacity was not strong from one standpoint, but tibe jury, whose province it was to pass upon tbe evidence, delivered their verdict and we bave no control over it, for there was no error of law committed by bis Honor, as we bave seen.

Tbe motion of tbe propounders, tbe appellees, on tbe ground tbat tbe appeal bond, was not filed in time under Tbe Code provision was not granted. It is enacted in Chapter 135 of tbe Acts of 1889 tbat no appeal should be dismissed in tbe Supreme Court on tbe ground that the undertaking-on appeal was not filed earlier, or the deposit made earlier, provided the board should be given oa- the deposit made before the record of tbe ease is transmitted by the Clerk of the Superior Court to tbe Supreme Court. The bond was filed and sent up with tire record. There was no en-or in tbe trial below, and tbe judgment is

Affirmed.  