
    
      Wiley Reynolds et al. vs. Thomas Reynolds, Executor, et al.
    
    1. The words, “in presence of the testator,” in the Acts of the Legislature inreference to the execution of Wills, must be literally construed; 5 Stat. at Large, p. 106; 6. Id. 239.
    2. Where the witnesses to a will, after seeing the testator sign, withdrew into an adjoining room for the purpose of signing their names more conveniently, but out of the testator’s eyesight, as he lay or stood at the moment of their signing. — Held not to be a good attestation within the meaning of the Acts.
    3. The testator need not actually see the witnesses sign the will, yet they must have been in a position to let him see their subscribing; which means that they must not withdraw themselves from the continued observance of his senses, although the testator may, himself, refrain from using such senses.
    
      Before Richardson, J., at Edgefield, Extra Term, July, 1842.
    This was an appeal from the decree of the Ordinary.— The Judge had admitted to probate a paper purporting to be the last will of Thomas Reynolds, deceased.
    The grounds of appeal were reduced to this question : Had, or had not, the three subscribing witnesses to the will, signed their names to the attestation, in the presence of the testator 1
    
    The evidence is annexed for reference, and it will be seen, that after the testator had signed the will, (in his bed and last sickness) resting on his right elbow, and upheld, and his hand made steady, by his friends, he again sunk down to his bed, and remained in that position, until the will had been attested, when it was returned to him, and he delivered it to his son. All was fairly done, and without pretence of fraud. But the three witnesses had subscribed their names in the following way. Having seen the testator sign, they were all ignorant that it was equally necessary for him to see their subscribing, as witnesses; and so, for conveniently writing their names, they left the sick chamber, and went to a table in the hall, and subscribed their names. It was clear that the testator could not, as he lay in his bed, have seen them so subscribe. But it was also clear, that, if he had risen from his posture, and sat on the side any-where from the centre to tire foot of the bed, he might have seen them: and it appeared that he had strength enough to have done so. But it was well proved, that he did. not alter his recumbent posture at all. The will was, therefore, attested by the three witnesses, out of the reach of his eye-sight.
    His Honor charged the jury, that our Statute Law required, as one of the conditions precedent to all written wills, that the witnesses must subscribe their names in the presence of the testator, which means, in general, within the eye-sight of the testator, as he lay or stood, at the moment of their subscribing. Whether he practically looked on them, or not, was not the question. But, that he might have seen them, was indispensable; where, as in this case, the testator had his eye-sight. That, in such a case, the witnesses must not remove themselves, in order to subscribe, beyond the scope of his vision. That the reason of the rule, was to prevent the imposition of another will. But, being adopted as a rule, the clearest absence of all such imposition, could not dispense with the rule.
    The Statute required three subscribing witnesses — that the testator should sign in their presence, or acknowledge his signature to them; and that they should subscribe, as witnesses, within his practical vision, as he stood: and not as he might or might not stand ; and the last requisition was as indispensable as the former. (See Wright vs. Manifold., 1 M. & S. 294; Winchelsea vs. Wauchope, 3 Russ. 441.) But the jury confirmed the decree of the Ordinary, from which finding, the plaintiffs appeal.
    The plaintiff^ in suggestion now moved the Court of Appeals to set aside the verdict, finding the paper in controversy to be the last will and testament of Thomas Reynolds, Senior, deceased, and for a new trial, on the grounds:
    1. That the supposed will was not attested and subscribed by the witnesses, in the presence of the said Thomas Reynolds, Senior, deceased.
    2. That the verdict was contrary to law, and the instruction of the presiding Judge, upon a state of facts proved by the witnesses of defendants, and entirely undisputed.
   Curia, per

Richardson, J.

Did the witnesses to the will of Thomas Reynolds, sign their names in his presence, is. the only question of the case. By our Act of 1789, 5 Statutes at Large, p. 106, wills of lands are required, (Sic. to be “ attested and subscribed by three credible witnesses, in the presence of the said devisor. ” And by our act of 1824, 6 Statutes at Large, p. 239, for putting wills of personal property on the same footing, the words are and shall be attested and subscribed in the presence of the said testator, or testatrix, by three or more credible witnesses; or else they (the wills) shall be utterly void and of no effect.” The question turns upon the words “ in the presence of.”

Is the subscription of the witnesses, when made out of the reach of the testator’s senses, if the testator still remained in the posture in which he wrote his own name, or in that in which he placed himself while the witnesses were going into an adjoining room, in order to write their names — is such attesting and subscribing, in his presence'? Or is it not in his presence, when it is evident that by sitting on the side of his bed, the testator might have seen the witnesses writing their names 1

Assuredly, were this question between the maker of a deed and those claiming in virtue of its provisions, there would be much reason in requiring the maker to have done all he was able to do, or to suffer for his default.

But in the case of loiils, the testator is passive, and the contest is between his heirs at law, and his legatees under the particular will. The provisions of the Acts are therefore alone to be considered. And it equally follows, that the legatees must exhibit a will strictly lawful, or fail altogether as legatees. So that the burthen of proof is upon them, to present a will in due form of law. The obvious policy, not to say the necessity, of the Act of 1789, and that of 1824, concurs with this view. They were formed to protect men against fraudulent wills. Wills are usually made, as in this case, by dying men, or sick men, who are easily importuned or swayed. The Act, therefore, directs the testator — 1. To sign the will himself, or have it signed at his express direction. 2. That it must be attested by not less than three witnesses, because fraudulent confederates usually conspire in pairs, and can seldom trust with* safety any third person. A third is apt to derange our habit of entire reliance upon some one friend, in preference to all others; and lastly — That the witnesses shall subscribe their names in the presence of the testator, in order that it may be always within his observation, to the last act that makes it his will, and so prevent a fraudulent will being foisted in its place. Such reasoning upon the preventive policy of the Acts, points out the good sense of construing literally the meaning of the words in the presence of the testator,” so as to make them mean, within the observance of his senses : and place the three protections of testators against frauds, upon the same safe footing ; all obvious to plain understandings, through the means of the senses. The testator signs — calls on three persons to subscribe, as witnesses — and they are required to subscribe, and to do so “ in his presence,” which last requisition must mean, nowhere else. The particular case is hard upon the legatees, because there appears to have been no fraud whatever. But we are obliged to take the law as written in the Act. And to prevent frauds in general, they must suffer from the strict enforcement of its wise general provisions against fraudulent wills. If, from the letter of the Act, from its spirit and policy, and from the inconvenience that would follow, we turn to adjudged cases, we shall find the same result. As in Wright vs. Manifold, 1 M. & Selw. 294; or Winchelsea vs. Wauchope, 3 Russ. 441, The witnesses must subscribe their names within the sight of the testator, as he stood, and not as he might or might not stand. See also the cases in 1 M. & Selw. 294; 3 Russ. 441; 2 Bos. & Pul. 54; 3 Cond. Chan. Rep. p. —. And this position appears to be deduced from the adjudged cases, and to be recognised by great commentators — see 4 Kent, 574 ; 1 Pow.. 90 ; 1 Roberts, 128, — that, although the testator need not actually see the witnesses sign the will, yet they must have stood in a position to let him see their subscribing; which means, that they must not withdraw themselves from the continued observance of his senses, although thetestator may, himself, refrain from using such senses. Such discretion is with him, but not for the witnesses to avoid the opportunity of his so doing.

V 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. But this illustrates the rule I have laid down, that where the testator can see, he must not be deprived of the opportunity of seeing the subscription, by the conduct of the witnesses. If, in the case of a blind testator, the witnesses were to withdraw their subscription from the observance of those senses by which, only, the testator could perceive their being present and were subscribing, and such a will were held to be good, the case would be analagous to the one before the court. But no such case can be found. I would not say that it is absolutely impossible, (although it is so considered by great writers,) that even a blind and a deaf and dumb man can make a'will. But whenever such a case occurs, the three requisites of all wills must appear: that the testator signed the will, or expressly directed it to be signed for him, that three witnesses attested it in writing, and that the testator had been sensible that they signed their names in his presence. And of these three requisites, if there be any inequality in their importance, the last is the most effectual to prevent the substitution of a fraudulent will in the place of the intended genuine will of the testator, Whifch is the immediate object of our Acts directing the manner of executing last wills and testaments.' A new trial is therefore granted, upon the strict law of the case.

Evans, Butler, and Wardlaw, JJ., concurred.  