
    COURT OF APPEALS,
    JUNE TERM, 1796.
    Russell and Lux against Moor Falls.
    THIS was an appeal from the court of chancery.
    The record states that a bill was .filed on the 1st of October, 1790, by Moor Falls, (the appellee,) to establish 'she will of Catharine Lux, wife of George Lux, (one of the appellants,) made under a power given her by deeds legally executed on the 18th of September, 1789.
    By the consent of the parties the following issue was directed by the chancellor, to be tried in the general court for the Western Shore, to wit, “ Whether Catharine Lux, wife of George Lux, one of the defendants, made, executed and attested, any instrument in writing, as and. for her last will and testament, in the manner required by the statute of frauds and perjuries, in case of a will •for passing xeal estates.”
    At May term, 179Í, the said issue was accordingly tried in the general court, and that court gave their direction to the jury, which direction and the verdict found by the jury are hereafter set forth in the certificate returned by the judges of the general court to the chancellor.
    A motion was made to set aside the verdict, and to grant a new trial, and the defendants, by their counsel, filed reasons for setting aside the verdict.
    The general court continued the case on the motion for a new trial, until the next term. -
    The complainant exhibited his petition to the chancellor, stating that the issue had been tried in the general court, and a verdict found in favour of the complainant, and prayed the chancellor would proceed to decree.
    The chancellor fixed a day for the hearing of counsel upon the petition, and on that day the case was argued.
    
      The chancellor, afterwards, on the t/th of June, 1791, made the following order :
    In this cause an issue having been directed to be tried _ ° in the general court for the Western Shore, as appears by reference to the proceedings, and the complainant’s counsel having filed in the court a certificate from the clerk of the general court, from which it appears that the said issue had been tried at the last May term, and that there hath been a finding by the jury in favour of the complainant. The whole proceedings in the said general court being set forth in the said certificate, and the com- • •plainant having likewise filed a petition to the chancellor, praying him to proceed upon the verdict so found, or to make such further order as to him may seem meet, and the chancellor having appointed the petition to be heard on this day, and the counsel on the part of the defendant having, on the hearing, objected that, as it appears by the said certificate, that a motion to the said general court for anew trial of the said issue hath been made to the said general court, and by them postponed to the succeeding term in October next,the chancellor cannot properly proceed to a final hearing of the cause, until the said general court shall have determined on the said motion, and their proceedings shall have been by their order certified to this court; and the arguments of the counsel on each side, relative to the said petition, having been heard and considered, the chancellor is of opinion as follows ; That there' is no necessity for him to decide whether or not the general court hath authority to grant a new trial; that whether that court hath the said authority, or not, there can be no doubt that the chancellor may, in the mean time, exercise his own discretion on the subject, the said issue having been directed for no other purpose than to satisfy his own conscience relative to the fact litigated between the parties, and that taking the aforesaid certificate of the clerk as a sufficient return of the proceedings in the general court, he may proceed with propriety to a final •hearing of the cause, provided he shall be of opinion that the said finding of the jury is a complete verdict, and that no just cause shall be shown for directing a new trial of the issue aforesaid. It is, therefore, adjudged and ordered, that this cause be finally heard on Tuesday the second day of August next, unless cause be shown for granting a new trial of the issue aforesaid: provided a copy of this order be served on the defendants, or their counsel, within twenty days from the date hereof.”
    Owing to the indisposition of counsel, the time for hearing the case was extended until the first Tuesday of October, at which time (the reasons and motion for a new trial in the general court having been withdrawn) two of the judges, R. Goldsborough and J. T. Chase, Esqs. (Thomas Johnson, Esq. the chief judge when the issue was tried being since dead,) certified to the chancellor the trial of the said issue, as follows, viz.
    “ We hereby certify that the issue above mentioned Was tried before us, at the general court, in May term last; and that on the trial of the said issue it was proved in evidence to the jury by the testimony of Mary Chambers, one of the subscribing witnesses to the will of Mrs. Lux, that the deponent was below stairs in Mr. Lux’s house, and was called up into Mrs. Lux’s bedchamber, but did not know by whom, nor for what purpose ; that she did not see Mrs. Lux sign the will, but heard her declare it was her last will and testament, and the deponent was asked to be a witness, but did not recollect by whom. That the witnesses went into the next room, which was on the same floor, to sign ; and the deponent, Jannet Vayne and Mrs. Williamson, signed their names to the will; but did not recollect they were'requested to go there. That after the will was signed she saw Mrs. Lux have it in her hands as she lay in bed, and some time after she gave the witness the will to lock up, which she did, and gave it out after the death oí Mrs. Law* That the will was executed in September, and she died the February following at Philadelphia. That no person directed the signing; but Mr. Russell called on them to take notice of their signing. The deponent further declared that Mrs. Lux was in bed when she signed the will, and set up iñ hed to sign it: the room where the witnesses signed adjoined that where Mrs. Lux lay when she signed the will; that the door was opep, hut the bed in which Mrs. Lux lay was so situated she could not have seen the witnesses sign as she lay whén they left the room. That Mrs. Lux was very ill, and complained of being” hardly able to write. Mrs. Vayne proposed that some person should write her name, which the deponent supposed was on account of her weakness. That she does not know Mrs. Litx got out of bed whilst the witnesses were attesting the will, and believed she was not able to get out of bed without assistance, and that if she had gbfc out of bed, the deponent must have heard her; that after Mrs. Lux had signed the will, she immediately lay down in bed. The witnesses went into the other room to subscribe the will, and, immediately after subscribing, the deponent returned into the room and found her in bed in the same situation they had left her.
    “ It was atoó proved by the testimony of Elizabeth Williamson, another subscribing witness to the will, that her name, subscribed to the attestation of the will of Mrs. Lux, is her hand-writing, but that she did not see Mrs. Lux sign the will; that the witness knew nothing of Mrs, Lux’s intention to execute a will, till she was called from below stairs into her room to be a witness; she did not. recollect who called her up, nor that any other persons were in Mrs. L:-x’s room except the witnesses and Mn William Russell. That the witnesses were asked into' another froom to subscribe their names, arid were only absent while they were signing their names, ánd returned again to Mrs. Lux in a few minutes; that Mr. Russell was present with the witnesses in the room where they signed, and laid the will on the desk, and directed them to see each other sign, and while the witnesses were signing no person was in the room with Mrs. Lux; that the deponent came to Mr. Lux's house the day before and found Mrs. Ltofill, who had been taken with a vomiting of blood ; that she was as weak as she could be to live, and could not have got out of bed without assistance, and that it was not possible she could see the witnesses subscribe from the bed in which she lay. That after the will was subscribed by the witnesses, it was returned to Mrs. Lux by Mr. Russell; that the deponent continued with Mrs. Lax some days after, who was confined to her chamber in a very weak state, and had no conversation tvith her on the subject of her will.
    “ It was also proved by the testimony of Jannet Vayne, another subscribing witness to the will, that her name, subscribed to the will of Mrs. Lux, is her hand-writing j that the witness saw Mrs. Lux sign the will, and declared the same to be her will, and saw the other witnesses subscribe their names ; that Mrs. Lux was at the time in a very weak state, and raised herself up to sign her name with difficulty, and said she did not know if she should be able to do it. The deponent believed it impossible for her to get out of bed without assistance 3 that the witnesses to the will Went into another room to sign their names, and that it was not possible for her to see them, in the position in which she lay, subscribe their names. That they were but a short time in the room where they signed their names, and when returned to Mrs. Lux, they-found her laying in the bed where they had left her.
    “ It was also proved by the testimony of Richardson Stewart., that some time after the bill filed in chancery he was showed the room, and the bed, and the position of the said bed, as it was alleged by Mary Chambers, in which Mrs. Lux lay at the time she executed her will, and also the room and position of the desk when the V/itnesses to the will subscribed their names, at which they wrote; thát from the bed he could not see the desk in the other room ; that Mary Chambers set down at the desk to write, where she alleged the witnesses set when they subscribed the will; and he stretched himself over the foot of the bed as far as he could, and could then only see the skirt of Miss Chambers’s petticoat as she sat at the desk, but could not see her write; that when he made his observations the bed was not removed from the. wall.
    “ It tvas further proved by the testimony of Samuel Johnson, Esq. that he drew the will of Mrs. Lux from minutes delivered to him by Mr. Russell, and agreeable thereto; that Mr. Russell urged him at the time to use expedition, lest Mrs. Lux should not be able, or be in a situation to execute it, and seemed anxious to have the will ready and executed with the least possible delay j and that the said will was delivered to the said William .Russell, who was, at the time, and had been for some years before, one of the justices of the orphans’ court of Baltimore county.
    “ It was also given in evidence, by the subscribing witnesses to the said will, that they formed their opinion of Mrs. Lux's being unable without assistance to leave her bed, from their general idea of her situation and apparent weakness, and not from any exertions they had seen her make for that purpose, and failing therein.
    The court also certify the evidence of Mrs. Mary Robinson, as contained in her deposition taken on a commission sent to Philadelphia. [The testimony of Mrs. Robinson is, that she was acquainted with Mrs. Lux from the year 1778, to the day of her death, and that there subsisted the most strict intimacy and friendship between them; that Mrs. Lux died in Philadelphia on or about the 8th or 9th of February, 1790. That she had repeated conversations with Mrs. Lux respecting her having made a will; but that Mrs. Lux never mentioned anything about it to her in the presence of a third person excepting on the afternoon of the day on which she died, and then in the presence of her husband, Mr. George Lux. She said she had neglected some small matters in , _ her will, and wished either her said husband or the witness to take a memorandum thereof, upon which Mr. Lux did take a memorandum as Mrs. Lux had de» scribed. That at other times when Mrs. Lux and herself were together, she mentioned the particulars of her will to her, and asked her her opinion of the legacy she had left Miss Bird, and of that to the children of Mr. Russell, and upon the witness expressing her approbation thereof, Mrs. Lux declared that she was very happy therein, and all her friends approved of what she had done. And Mrs. Lux acquainted the witness that Mr. Russell had approved of her will, and had, before she executed itB taken the heads thereof to a gentleman of eminence in the law. That she knows William Russell, the defendant, and has had conversations with him respecting the will of Mrs. Lux; that the witness went from Philadelphia ;to Chatsworth, the seat of Mr. Lux, near Baltimore, to attend the funeral of Mrs. Lux, and that some time after the funeral, about the 15.th of February, 1/90, she and Mr. Russell being alone, he mentioned the will of Mrs. Lux in terms of approbation, and said that she, the wit» ness, might make herself easy as to the will, and that she might acquaint Mr. Biddle's family, in Philadelphia, that all the wishes of the deceased should be complied with, jt being in his power to have her will executed in conformity to those wishes, and that he would do so.]
    “ Whereupon the court, at the instance of the defendant’s counsel, gave the following opinion, and direction to the jury, viz. * All the necessary forms to the due execution of this will are agreed to have been complied with, except that of the witnesses subscribing, as such, in the presence of the testatrix. Evidence has been given touching the situation of the witnesses and the testatrix at the time of the witnesses’ subscribing; if, from the evidence, von are of opinion that the situation of the witnesses and the testatrix at the time of the attestation, was such that the testatrix might have seen the witnesses subscribe as such, the execution of the will was proper and legal, although the testatrix did not actually see the witnesses subscribe their names; otherwise not.’
    “ And the plaintiff’s counsel, after the court had delivered the opinion aforesaid, contending that the situation of the witnesses and testatrix therein mentioned, meant the same as if by a change of her position, she might from the room she was in see the witnesses subcribe as such, the court explained their direction to the jury, and informed them, ‘ That it was necessary the testatrix, at the tiine of attesting the said will by the witnesses, might, without changing her position, have seen them sign the same.’
    “ Whereupon the said jury, after retiring to consider .of their verdict, returned the same to the court in the words following, viz. ‘We the jurors are of opinion, •from the evidence, that the testatrix, Mrs. Lux, might have seen the witnesses sign her will from the room .wherein she lay, provided she had made such an exertion ; and, therefore, agreeable' to the direction of your honours, find a verdict for the plaintiff.’
    “ We further certify, that by our direction to the jury-in explanation of our first direction, we intended to convey and impress the jury by the words, ‘ without changing her position,’ that it was necessary the testatrix, at the time of attesting the said will by the witnesses, might, without getting out of the bed where she then lay, have seen them sign the same.
    “ R. Goldsborough.
    “ J. T. Chase.
    “ October 31st, 1791 •”
    
      The Chancellor, on the 13th of March, 1792, made the following order, viz.
    
      
      61 The certificate of the clerk of the general court, uneler the seal of his office, stating the trial of the issue heretofore directed in this cause, and the finding of the jury under the direction of the court having been obtained; and the complainant having thereon petitioned the chancellor to make such order as to him should appear meet, the chancellor did accordingly order a final hearing of the cause on a certain day, unless, &c. On that day, after hearing the counsel on each side, the chancellor thought proper to postpone the final hearing until the defendants should have an opportunity of obtaining a certificate from the judges of the general court, stating their opinion of the said finding. A certificate has accordingly been obtained from two of the said judges, stating the whole proceedings on the trial, the evidence, the direction of the court, and the explanation of that direction, which appears not at first to have been understood. They do not expressly say that the finding of the jury was inconsistent with their direction, but, from a view of the evidence, the direction and explanation, the chancel lor cannot conceive otherwise than that the finding of the jury in favour of the complainant was not, in the opinion of the judges, warranted by the evidence. The chancellor cannot but regret that the aforesaid opinion of the judges does not coincide with his own sentiments j he apprehends that agreeably to the principle of sundry decisions in England, the will of Catharine Lux was attested in the manner prescribed by the statute. The law cannot, he presumes, admit of such distinctions as these — -the attesting a will in the same room with the testator shall be good, although the testator’s face was turned from the witnesses — -so likewise “ the attesting a will shall be good, although the testator was not in the house with the witnesses, nor actually saw the attestation, provided only he could have seen the attestation from the coach in which he sat during the transaction. But the signing of the witnesses in s room communicating by a door with, and divided by a partition from, the room in which the testator stood, sat or lay, shall not be good, unless the testator, without moving from the spot where he stood, sat, or lay, might have seen the signing had he been disposed to look that way.” The requisite of law is the presence of the testator. There is no certain precise definition of the word presence ; but the chancellor conceives the true meaning of the law to be this; that the witnesses, at the request of the testator, shall immediately proceed to the attestation, without any material change of place, or interval of time, or intervening material circumstances, and that the testator, at the moment, shall be conscious of what the witnesses are about. A testator is sitting with his face towards the chimney place, and the witnesses attesting behind his back, in a distant corner of the room ; this shall be good, provided there was only vacant space between him and the witnesses. This is admitted: but can it be supposed that, if at the instant before the signing, a screen were accidentally interposed between the testator and witnesses, the attestation would be therefore bad ? certainly not. As the chancellor does not think it proper for him, on a point of law, to decide contrary to the opinion of the judges of the general court, or, on their opinion, to decree against his own sentiments, he proposes that the > case be stated for the opinion of the judges of the court of appeals. Not that he presumes he has a right to demand an opinion from the judges of a superior court; but that he hopes, under the peculiar circumstances of this case, their honours will deem it not improper to give an opinion, which will be decisive. Should they decline it, the chancellor must, in the end, determine according to his own conscience.”
    A. C. Hanson, Chancellor.
    
    It is presumed the court of appeals did not'give the opinion requested by the chancellor 3 for he afterward^, at February term, 1793, made viz. the following decree,
    “ This cause standing ready for a final decision on the equity, and being submitted to the chancellor, the bill, answers, and all other proceedings were by the chancellor read and considered 5 and all the matters stated in the bill, except the due execution of the last will and testament of Catharine Lux, being admitted by the answers; and the conscience of the chancellor being satisfied, from' the transcripts and certificates of the proceedings in the general court, relative to the issue directed to be there tried, that the said last will and testament was duly executed in the manner required by the statute of frauds and perjuries in the case of a will for passing land.
    “ It is thereupon, this 15th day of April, 1793, by Alexander Contee Hanson, chancellor, and by the authority of this court, adjudged, ordered and decreed, that the defendant, William Russell, do execute the trust reposed in him by the deeds in the bill mentioned, and the last will and testament aforesaid, and pursue the directions in the said will contained relative to the complainant, and that the said defendant and trustee, William Russell, do account with the complainant, Moor Falls, for the annual sums or interest, which, agreeably to the said deeds of trust, and the directions of the said last will and testament, ought to have been paid, and are in equity due to the complainant; and that the auditor of this court do state the said account, and return to this court, subject to the objections of each party, and to be done with as the chancellor shall think proper.
    “ A. C. Hanson, ChancellorP
    
    The defendants, Russell and Lux,
    
    appealed from the said decree to the court of appeals; and the case was, at June term, 1796, argued in that court.
    
      Jenings, for the appellants
    
      (Russell and Lux*) The question before this court is, whether the will of Catha<> riñe Lux is executed pursuant to the statute of frauds, which requires the witnesses to sign in the presence of the testator.
    This was thought necessary, otherwise, if the will was carried from her presence, one might be imposed different from that she signed.
    The position is admitted; but it has been said that this will was signed in the presence of the testatrix.
    It must be admitted, for the evidence expressly proves it, that the testatrix could not see the witnesses sign the will in the position, or from the bed, where she lay.
    If this is a good will, it will destroy the force- of that clause in the statute which directs a signing by the witnesses in the testator’s presence.
    The law being clear, no court has a right to deviate from it.
    The word position, in the books, means the situation in which the testatrix was then in, as the bed, the chair, the coach, &c. If she could.not see from this situation, the will is bad.
    To construe the word situation to mean such a situation as the testatrix might have been in from change of place, will destroy the statute, and make any will good.
    The witnesses might sign in a room below stairs, or in another house, and it may be said the will is good, because the testator might have removed from the situation in which he was, to such a situation as might enable him to see.
    But in this case, if the law was so, there was a physical impossibility of the testatrix’s getting from her bed. See the evidence.
    The cases of the curtain, &c. which says the testator might see, means in the situation he was in, and as it would be impossible to say whether he did or not, as he might see through the curtain, put it gently back, or remove a little the leaf, of the screen, it has been dete#jnined from the almost impossibility of such negative proof, that the will was good.
    But all the cases speak of the then situation of the testator, and none say, that if by moving to a different place he could see, though he could not where he was, that the will should be good.
    The case in Bro. Ch. Rep. 99. proves this: the coach being put back so that the testatrix could, from her situation in the coach, see the office. But suppose the coach had not been put back, and she could not have seen from it, would the will have b 'en good, under the idea that she might have so changed her situation by putting back the coach as to have been enabled to See. Why was the circumstance of putting back the coach mentioned, or material? Only to show that by putting it back she might see in her then situation.
    Ours is nearly a similar case. The judges of the general court were of this opinion, and so the chancellor mentions. He differs from them; but his reasoning does not amount to prove what the law is, (which is manifest from all the cases,) but to induce an opinion that the law ought to be altered so as to validate this will.
    Though the chancellor has not expressed this, his reasoning in support of his opinion amounts to it. He has not cited a single authority to justify his opinion, though there is a cloud of them the other way.
    The verdict finds the testatrix must have moved from her situation, or, in other words, that she could not have seen from the place where she lay.
    The jury mistook the court’s direction, and thought it applied to a power of seeing if she changed her place to another part of the room — to any part where she might see by going near enough. This, as before said, would make the statute of no effect. 1 Fonb. 183, 184.
    
      dóoke,
    
    on the same side. The question ¡ whether th< will of Mrs. Lux was executed agreeably to the statute of frauds; that is, whether the attestation of the witnesses was made according to the directions of that statute.
    Four things are necessary to the validity of a will under the statute.
    1. That it be in writing;
    2. That it be signed by the party, or some other person in his presence, and by his direction.
    
      3. That it be attested by three or more itnesses.
    4. And that the witnesses subscribe, as such, in the presence of the testator.
    These guards are established by positive law, and can.not be dispensed with. I will admit that where the transaction is fair and open, the court ought, and have leaned in favour of the will: and that in some instances they have given a construction to the meaning of the words of the statute, in favour of the intention of the legislature to support a fair will where it was not possible there could be any fraud or mischief arise from such construction. But those cases are plainly distinguishable from the present; and if this will is supported, one of the strongest guards imposed by the statute is wholly evaded and rendered of no effect.
    Soon after the passing of the statute a question arose about what was a signing within the words of the law.
    
      Stanly wrote his will in his own hand, and upon a single sheet of paper: “ I John Stanly? &c. put his seal, and it was subscribed in his presence by three witnesses. 3 Lev. 1. 1 Eq. Ab. 403. No fraud could possibly have happened. The statute did not say where he was to sign 5 at top, bottom, &c.
    Suppose the will had been written by another i Suppose it had been written on several sheets of paper 1 Doug. 241. 3 Burr. 1775. 1 Burr. 549.
    Sealing was at first thought a sufficient signing. 2 
      Stra. 764. But 1 Wils. 313. the court say they would determine otherwise. 2 Vez. 459.
    The statute does not require sealing, but signing is indispensable.
    Again, it has been a question, what is a sufficient attestation.
    The statute does not expressly require a signing in the presence of the witnesses. Doug. 244. n. 3 P. Wms. 254.
    It has therefore been held, that if the testator acknowledges it to be his hand-writing, it is sufficient, though the witnesses did not see him sign. 2 Vez. 454, 455. 3 P. Wms. 253.
    But to acknowledge it to be his will, without acknowledging his hand, is not sufficient, because signing is essential. 2 Atk. 182. Doug. 244. Powell, 73.
    In the first case the substantial requisite of the statute is complied with, but without a possibility of fraud; in the last, it is not. But Holt held differently in the first case. Lee and Libb, Show. 68. 3 Mod. 362.
    Other doubts have also arisen what is a subscribing by the witnesses in the presence of the testator.
    Subscribing in his presence means within his view j Powell, 90. not that it is absolutely necessary he should see them subscribe ; but he must be in such a situation as to be able to see them without changing his situation. Powell, 92.
    It has been therefore held, where they signed in another room, where there was a glass door and the windows broke, and the testator could see them from the bed where he lay, it was sufficient. Salk. 688. Cartk. 81. Eq. Ab. 403.
    So where they went in another room and signed on a table, the door being open and the testator could see if he would. 3 Salk. 395.
    So where the testatrix signed in her coach, and they "vent; into a roont to sign, and the coach was backed to the window so that she might see from the carriage. 1 Bro. Ch. Cas. 99.
    The statute makes subscribing in presence or view essential. I am not bound to assign a reason why it ought to be so. It is a positive regulation, and cannot be dispensed with no more than the signing by the testator, or that the will must be written. But perhaps it was intended to prevent interpolation, to prevent putting in other clauses, &c. 1 he testator must be in such a situation that he may see. But if changing his position is necessary to enable him to see, it is void. Powell, 92. and cases cited, and 1 Bro. Parl. Cas. 137. 1 P. Wms. 741.
    In this case it is said the testatrix might see if she had changed her situation But it is proved she was not able to move, and proved she could not see without moving.
    If a subscription was up stairs, and the testator below, he might see if he would walk up; yet it will not be said such a will is good; still less if it was proved both his legs were broke, and he could not walk up if he would.
    The door, it is true, was open, but the parties were quite out of sight. rI hey might have interlined, or interpolated whole sentences, or even- substituted another will, yet she could not have seen them.
    If this can be allowed, there can be no reason why they might not have gone into another house.
    Three witnesses are necessary to subscribe, yet wq know if two only do so, though twenty others were present, and offer also to prove, it cannot be admitted. Y et in such case there could be no fraud. But if you break the express provisions of the statute in one instance, you may do it in all, and then all the mischief it was intended to prevent will return.
    
      A. Robinson, for the appellee.
    A question arises whether the verdict on the issue tried in the general court is a complete verdict, and such as the court ought to have granted a certificate in favour of.
    He contends that it is a complete verdict.
    Every verdict is either general ox special. Co. Lit. 226. b. A general verdict is where the whale matter in. issue is found, e. g. guilty or not guilty, assumpsit or non assumpsit, or for the plaintiff or defendant, which is precisely the same as guilty or not guilty, fee.
    A special verdict is where the jury find the naked, facts as proved, submitting a question of law flowing therefrom to the court, praying their advice, and concluding conditionally, that if the court are of opinion that the plaintiff had cause of action, they find for him, otherwise for the defendant. 3 Bl. Com. 377.
    
    If the jury find the fact, but conclude upon it contrary £0 lav/, the court may reject the conclusion. Hob. 222.
    This verdict is inaccurate; but verdicts, being the words of laymen, are to be favourably construed, and not strictly, like pleadings ; and if the court can collect the clear meaning of the jury from the verdict, they will work it into form. 2 Burr. 699, 760. Hob. 54. 1 Sid. 27. Carter, 80. If a verdict be found so ambiguously and uncertainly that no judgment can be given thereon, a venire facias de novo must be awarded thereon. Co. Lit. 227. a. If a jury find but a part of the matter put in issue, and say nothing as to the rest, a venire facias de novo will be awarded; Co. Litt. 227. a. or if the special verdict be imperfect, or does not take in the whole matter in issue, or the whole issue. 2 Ld. Raym. 1521.
    In considering a special verdict, the duty of a court is to draw a conclusion of law from the facts found by the jury; the court cannot presume any facts from the evidence stated; presumption being a ground of evidence, but the court cannot presume any fact. Cowp. 92.
    If the verdict find the whole that is in issue, and something more, the verdict is good. The maxim is utile per 
      
      inutile, &c. Co. Lit. 227. a. 5 Bac. 300, For example, issue whether I. S. died seised? jury find that he died seised, and a continual claim bv J. M. The court ’ . ". will pay no regard to the continual claim of J. M. 5 Bac. 300, 301, 302. and Cases, 1 Leon. 67.
    It is not sufficient for a jury to find either evidence or circumstances from which the court' may very fairly infer the matter in issue. 5 Bac. 315. Vide reason plea 4th as in trover. Demand and refusal is not a conversion, but it is evidence thereof.
    If a verdict find matter out of the issue, it is void for so much, though' it concludes generally thereon, for or against plaintiff or defendant, 5 Com. 161. cites 1 Leon. 66. though the matter'out of the issue destroys the plaintiff’s title.
    If a jury .find a direct verdict for plaintiff or defendant, and add uncertain or contradictory matter, it will be considered as surplusage, and will not avoid or hurt the verdict. 5 Com. 168. cites 1 Leon. 92. Cro. Eliz. 480. 2 Saund. 308.
    If a jury state the evidence on which they find the fact, it is surplusage, and will not vitiate the verdict. 4 Bro. Parl. Cas. 611. 615. argument of counsel.
    
    Where a jury begin with a direct verdict, and conclude with the special matter, or begin with the special matter,, and conclude with a direct verdict, in both these cases the special matter shall make the verdict. Hob. Rep. 51. Vide 5 Com. 172.
    The reasons of finding a verdict are not to be receiv? ed or considered as part thereof. Vaugh. 150. Bushel’s Case.
    
    A special conclusion waives the special matter. 5 Com. 171. Vide Vin. Trial, 402. (X. F.)
    If a verdict can by any construction be good, a construction to destroy it ought not to be received. Trials per Pais, 276.
    In the present case the jury haye found evidence and circumstances, viz. that Mrs. Lux might have seen, if she had made an exertion; that they find agreeably to the direction of the court; but they conclude with finding a verdict for the plaintiff, i. é. that Mrs. Lux did make and execute a paper, fkc. in the words of the issue, and so such a verdict would be received.
    It cannot be contended that this is a special verdict; 1st. The matter in issue, viz. whether Mrs. Lux made, &c. is not found specially; 2d. The jury do not find matter of fact only $ 3d. Because the jury do not submit to the court any question of law flowing from the facts; and, lastly, because they conclude with finding generally for the plaintiff; that |s, that Mrs. Lux did make, &c. and such a general finding is precisely the same thing as if the verdict had been expressed in such words at length. If it had, the conclusion would he, that as she might have seen the witnesses sign, provided she had made an exertion, she did see them sign, and if admitted to be contradictory, (which it is not,) the former part would be rejected as surplusage. 5 Com, 168. 1 Leon. 92. Cro. Eliz. 480. 2 Saund. 308. Vin. 437. pl. 8.
    It is incumbent on the defendants to show that the verdict is imperfect, and incomplete. The conclusion is a complete and perfect finding for the plaintiff; does the former matter control or destroy the general finding ?
    The verdict is agreeable to the direction of the court, and their direction' (with the explanation) agreeable to law.
    The statute of frauds and perjuries (sect. 5th) requires four circumstances in the case of a devise of lands:
    1. That the will be in writing.
    ■2. That it be signed by the testator, or some person in his presence by his direction.
    3. That it be attested or subscribed by three or four •7-redible witnesses.
    
      4. That it be so attested in the presence of the testa» tor*
    Although the statute requires these four circumstances to the validity of a will of lands, yet it has frequently been a question both in courts of law and equity what, in legal construction, was a compliance with these four requisites, e. g. the second solemnity;
    Signing by the testator, in a few years after making the statute, was adjudged to be sufficiently gratified by the testator writing his name in any part of the will. 3 Mod. 219. Powell, 61, 62. Skinner, 227. Thus deciding that every case must turn upon its own circumstances, and giving the statute a liberal interpretation in favour of alienation by will, and giving the word “ signing” a construction opposite to the received opinion and. common sense of mankind, for it literally means “ Writing the name of the agent at the bottom of his act.” In this determination, the analogy of the word signing, as to other instruments, was disregarded.
    The third and fourth requisites called for by the act, are the attestation and subscription in the devisor’s presence, by three or more credible witnesses, &c. The liberal construction given by the courts to the word “ signing,” raised a question on the import of the word “ attesting,” as applied to the will;
    1st. Whether the witnesses were to attest the very act of signing.
    2. Whether an acknowledgment by the devisor that
    the act was done by him, and that it was his hand-writing; was hot sufficient to enable the witnesses to attest; and it was held that the acknowledgment was sufficient. Powell, 72. 74. 3 Burr. 1773. 1 P. Wms. 253. 2 Vesey, 454. Nor is it necessary to subscribe or see all the sheets of the will; Esp. 468. 470. 3 Burr. 1775.
    3. Whether the witnesses were to attest it at one and the same time, and held that they might at different times. Powell, 110, 111, 112. If the witnesses be all dead proof of their hand-tvriting good, though the attestation does not set out that they signed in testator’s presence. Stra. 1109. Com. 531.
    4. The next question was on the words “ in the presence of the testator,” and the courts held that “ in the presence,” was synonymous to “ in the viewthat is, that it was in the power of the testator to see 5 that he might see, but not necessary that he should actually see. Esp. 470. 3 Salk. 393. Nicholas v. Smith. If it were possible to see the witnesses subscribe, if it be in the power of the testator to see what is done, it shall be construed to be in. his presence ; Powell, 92. 470. and ajury ought to presume in favour of the v/ill} every p? esumption ought to be made by a jury, in favour of a will, when there is no doubt of the testator’s intention. 3 Burr. 1775. If it be not possible to see, aliter. Esp. 471.
    All these cases show that ever since the statute, courts-of law and equity will lean in support of a fair will, and will not defeat it for a slip in form. Doug. 241. 3 Burr. 1775.
    
    Whether witnesses attest in the testator’s presence, is a fact for the consideration of the jury under all the circumstances of the case. Powell, 98. Stra. 1109. Com. Rep. 531.
    The rule that if a testator might see, and that if it was in his power to see, is a rule of presumption of evidence, and not of law, and every presumption of evidence or of law must stand donee probatur in contrarium. 2 Bro. Ch. Cas. 516, 517. Under this idea, when proof is offered that it was in the power of the testator to see, the jury ¿nay, and ought to, conclude he. did see, 3 Burr. 1775. but when it is proved it was not in his power to see, the conclusion fails. The cases of curtains drawn, turning his back, and shutting his eyes, all turn upon these principles. The cases are 2 Salk. 688. Sheers v. Glascosk. Carth. 81. Comb. 158. 3 Mod. 259. 12 Mod. 37. 3 
      Salk. 395. Esp. 471. If not possible to seethe witnesses^ the will is void. Carth. 79. Comb. 156. Holt, 222. 1 P. Wms. 239. 790. 1 Bro. Rep. 91. Doug. 231. 1 Bro. Parl. Cas. 137.
    If the verdict be complete and according to the direction of the court, and that direction according to lawJ or if contrary tt> the direction, if according to law, there is no ground for a new trial. It cannot be contended that the verdict is against evidence, but only that it was against the weight of evidence. The weight of evidence, when witnesses are examined on both sides, depends in a great measure ■ upon the credit of the witnesses, of which the jury, and not the court,- are the only judges. 5 Bro. Parl. Cas. 152. or 192.
    If the court, by their explanation of their opinion, intended that Mrs. Lux ought to have had it in her power to see the witnesses attest from her position in bed* it is not law, nor supported by any case cited by Poxvell, but clearly the contrary; all the cases show that it is sufficient, if from the place, or chamber, or room, the testatrix can see.
    As to granting a new trial, it is discretionary with the court, and depends upon the peculiar circumstances of each case. It may be granted for a mistake of the judge, or for the misbehaviour of the jury, and in finding contrary to the direction of the court in point of law. 1 P. Wms. 213. For finding a general, when directed to find a special verdict, or for finding contrary to evidence, with this exception, unless it is a hard action; 5 Bac. 254. or the justice of the case does not require a new trial, (as in the present instance,) or for finding contrary to the weight of evidence, but very seldom in this instance. See 5 Bac. 246. 5 Com. 150. for the last instance. 1 Wils. 22. 3 Wils. 45. 47. 59. 272. 2 Bl. 851. 2 Wils. 306, 3 Cromp. 328, 329. Doug. 249. 2 Morg. Essays, 52. 67, 68, 308. 2 Wils. 38, 39. 45.
    
      «!?» Chase, on the same si.d.e. This case comes before the court of appeals, on an appeal from a final decree of the court of chancery on the equity reserved.
    
      M-.or Falls (the appellee) filed his bill against Lux and Russell, (the appellants,) to establish the will of Catharine Lux, wife of George Lux, under a power given her by deeds legally executed. An issue was directed by the chancellor, “ Whether Catharine Lux made and executed a paper, purporting to be her last will and testament, on the 18th of September, 1789, in the manner, and according to the directions of the statute of frauds and perjuries.” On the trial, only one objection was made to the due execution of the will, to wit, “ that the will of Mrs. Lux was not attested and subscribed by the witnesses in her presence.” The jury returned a verdict in. the following words : “ That the jurors are of opinion, from the evidence, that the testatrix, Mrs. Lux, might have seen the witnesses sign her will from the room wherein she lay, provided she would have made such an exertion, and, therefore, agreeable to the directions of your honours, find a verdict for the plaintiff.”
    It is admitted that the general court gave the direction to the jury mentioned in the certificate of the judges, and that the judges afterwards gave the explanation stated in their certificate | it is not admitted that the evidence is accurately stated. It is admitted that the general court appointed to hear a motion for a new trial at the next term; that before that term, the chancellor took up the cause on the application of Moor Falls, (the appellee,) on producing a transcript from the clerk of the general court of the proceedings in said court; .and that the chancellor did not grant a new trial, as requested by Lux and Russell, (the appellants,) and that afterwards the chancellor decreed in favour of the will; and from this decree Lux and Russell appealed.
    It is contended on the part of Moor Falls, (the appellee,) that the court of appeals are not to take any, the least notice of the direction of the general court, or of their explanation of their direction to the jury ;or of the certificate of the judges, and their state of the evidence; or of the application to the chancellor for a new trial, and his refusal to grant it, for the following reasons:
    1. Because the direction of the court is not according to the law, and the verdict of the jury is agreeable to it; that the direction of the court, with their explanation, is contrary to the law ; that the chancellor was not bound by the opinion of the court as to the law, but if he thought they were mistaken in the law, (as they certainly were,) he was obliged in duty to decree as the law appeared to him.
    2. Because the evidence might appear different to the jury from what it did to the court.
    3. Because the rule, (Powell on Devises, 92.) that if the testator might see the witnesses, or if it was in his power to see them, that what they do shall be construed to be done in his presence, is a rule of presumption of evidence, and not a presumption of law, and this presumption of evidence the jury might properly make in a fair and honest transaction, (as the present case,) when the court might not make the same presumption. Vide 7 Bro. 272.
    4. Because there was no appeal from the refusal of the chancellor to grant a new trial, but only from his final decree.
    If the court of chancery grant a new trial, an appeal will lie from such order. 4 Bro. 614. 3 Bro. Parl. Cas. 220. 5 Bro. 191. 7 Bro. 208. 215. 271. Or if the court refuse a new trial, 6 Bro. 442. 7 Bro. 9. 522. 243.
    Issue directed, motion for a new trial refused, and decree and appeal. 7 Bro. 244. It was argued that the party should have appealed from refusal of new trial, inistead of proceeding to hearing of the cause. 7 Bro. 505.
    An issue directed and verdict not a literal answer to the issue, and no application for a new trial, and a decree that the will be established, and the trusts thereof be „ . performed, and the appeal from the decree dismissed. 7 Bro. 511.
    If the verdict was contrary to law it could only be set right by a new trial, to be granted by the chancellor, and as he refused to grant it on the application of the appellants, they ought to have appealed from such refusal, and have now by their own neglect lost the benefit of such objection. As the appeal is only from the final decree on the equity reserved, the only question that can arise properly is this, whether the decree is erroneous or not ? The decision of this question must depend on this other consideration alone, whether the verdict is complete, and answers the issue directed? or, in other words, whether the verdict found that the will of Mrs, Lux was duly executed in the manner required by the statute of frauds and perjuries ? It is immaterial whether the verdict was. contrary to the direction of the general court, and their explanation, even on the admission that they were according to law, because, if the verdict was contrary to the law, it could only be corrected by a new trial, which the chancellor only could grant or refuse. Under this impression it will only be necessary to show that the verdict was complete and perfect, and answers the issue. Every verdict is general or special. Co. Lit. 226. b. A general verdict is where the whole matter in issue is found generally, e. g. as guilty or not guilty, a sumpsit or non assumpsit, or for plaintiff or for defendant, which is precisely the same thing as guilty or not guilty, fee. &c. A special verdict is when the matter in issue is found specially, e g. where the jury find only the matter of fact, and submit some question of law arising on the fact to the court. In a special verdict the jury state the naked facts as they find them to be proved, and pr ¡y the advice of the court thereon, concluding conditionally, that if, upon the whole matter, the court shall be of opinion that the plaintiff had cause of action, they then find for the plaintiff; if otherwise, for the defendant. 3 Bl. Com. 377.
    If a verdict finds the whole that is in issue, and something that is not in issue, the verdict is good. The maxim “ utile per inutile non vitialur" applies. Co. Lit. 227. a. 5 Bac. 300. Instances put e. g. issue whether I. S. died seised? Jury find that he died seised, and a continual claim by y, N. The court will pay no regard to the finding of the claim by J. N. 5 Bac. 300, 301. which cites a case in Dyer, 372. 5 Bac. 302. cites Cro. Car. 130.
    
    
      It is not sufficient for the jury to find either evidence or circumstances from whence the court may very fairly infer the matter which is in issue. 5 Bac. 313.
    
    If the jury find a direct verdict for plaintiff or defendant, and add uncertain or contradictory matter., it will be considered as surplusage, and will not avoid or hurt the verdict, 5 Com. 168. cites 2 Roll. 695. C. 5. 15. and 35. 1 Leon. 92. Mo. 431. Cro. Eliz. 480. Cro. Car. 76, 130. 174. 2 Saund. 308. Sav. 112. 21 Vin. tit. Trial, 436. pl. 1. 437. pl. 8. 10. 14. 438. pl. 15, 16. 18, 19.
    If a jury state the evidence on which they find the •verdict, it is surplusage, and will not vitiate the verdict. 4 Bro. Parl. Cas. 614. 615. argument of counsel.
    A special conclusion waives the special matter, 5 Com. 171. cites 2 Roll. 690. C. 20. see Cro. Car. 212. Vide Vin. Trial, 402. (X. F.)
    If a verdict may any ways b.e construed good, a construction to destroy it ought not to be made. Tri, per Pais, 276.
    In the present case the jury have found.evidence and circumstances, viz. That Mrs. Lux might have seen the •witnesses sign, provided, ,&c. but they conclude with ■finding a verdict for the plaintiff, i. e. that Mrs. Lux did make and execute a paper, &c. in the words of the issue, and so such a verdict would be entered. It is impossible to contend that the verdict is a special verdict; lo Because the matter in issue, viz. whether Mrs. Lux made, &c. is not found specially.
    2. Because the jury do not find matter of fact only.
    3. Because the jury do not submit any question of law arising on the fact to the court; and,
    Lastly, because they conclude by finding generally for the plaintiff; that is, that Mrs. Lux did make, &c. and such general finding is precisely the same thing as if the verdict had been expressed in such words at length; if it had, such conclusion would be, that as she might have seen the witnesses sign, provided she had made exertion, that she did see them sign; and if admitted to be contradictory, (which it is not,) the former part would be rejected as surplusage. It is incumbent on the appellants to show that the verdict is imperfect and incomplete. The conclusion is a complete and perfect finding for the plaintiff Does the former matter control or destroy the general finding ? The verdict is agreeable to the direction of the court, and the direction of the court, without the explanation, was according to law. But if the court consider it proper, on the present appeal from the decree, to pay no regard to the verdict of the jury, and to determine whether, from the evidence stated in the judges’ certificate, and the circumstances found by the jury, the will of Mrs. Lux was attested and subscribed by the witnesses in her presence, the appellee considers that the evidence well justifies the conclusion that Mrs. Lux's will was attested in her presence. It is admitted that the finding of the jury in favour of Moor Falls, the plaintiff, was not, in the opinion of the judges of the general court, warranted by the evidence. The chancellor was of a different opinion, and he was ultimately to decide the law. The following facts were admitted by the answer of Lux and Russell, and also on the triaL
    1. That the will was in writing.
    ?;• That it was signed by Mrs, Lux.
    
    
      3. That it was attested and subscribed by three credible witnesses.
    The only fact in controversy on the trial »vao, whether the will was attested and subscribed by the witnesses in the presence of Mrs. Lux. The evidence as to this fact was, 1. That alter Mrs. Luo; executed her will, the witnesses, for the convenience of subscribing the will, went into a room on the same floor, which adjoined that in which Mrs. Lux lay, very ill and very weak on a bed, when the witnesses left the room ; that the door leading from the one room to the other was open from the time the witnesses went out of Mrs. Lux’s room until after they attested the will, and returned in a few minutes.
    2. That Mrs. Lux could not see from the bed, laying Oil it, the witnesses when they subscribed her will.
    3. That there is no evidence that Mrs. Lux moved from the place in her bed in which she lay, when the witnesses left the room.
    4. That Mrs. Lux might have seen (or that it was iu her power to have seen) the witnesses when they subscribed her will, from the room in which she was, if she had made an exertion for that purpose,
    
      5. That the will, immediately after it was attested, ivas returned to Mrs. Lux by Mr. Russell, the trustee in the will. It is contended by the counsel for the appellants, that it was necessary that Mrs. Lux, at the time of the attesting the will by the witnesses, might have seen them without changing the position; that is, without changing the situation of her body from the place she lay in the bed. The counsel for the appellee contend, that it is sufficient, if it was in the power of Mrs. Lux to have seen the witnesses when they subscribed her will, from the room in which she was, although she did not actually see the witnesses at the time. The requisites prescribed by the statute of frauds and perjuries, is the attestation of the witnesses in the presence of the testa'tor; but there is no precise definition in any of the law books, of the word presence.
    
    The statute of frauds and perjuries (s. 5.) requires four circumstances in the case of a devise of lands ; 1st. That the will be in writing; 2d. That it be signed by the testator, or by some person in bis presence, and by his direction ; 3d. That it be attested and subscribed by three or four credible witnesses; 4th. That it be so attested in the presence of the testator.
    Although the statute has rendered these four circumstances necessary to the validiiy of a will of land, yet it is frequently a question in courts of law and equity, “ where in legal construction these requisites have been complied with, e. g. The second solemnity required by the statute is that the will be signed by the testator. In a few years after making the statute, (33 Car. II. See Eq. Ab. 403. 409. 3 Mod. 219.) doubts were entertained as to what the legislature meant by the wo: d signing; whether it should be constiued in its strict cense, and by analogy to other instruments, or whether it should be liberally expounded, and left open as a question of construction upon intention to be inferred from the facts and circumstances attending each particular case. On the latter principle courts of law put a liberal construction on the word signing by the testator, and held that the name of the testator being written by himself in any part of the will was a sufficient signing within the statute. Powell, 61, 62. This construction upon the word signed was apparently eentrary to the natural import and received interpretation thereof. 1 he word signing is a mere simple idea, viz. the writing the name of the agent at the bottom of the act. This construction was to favour alienation by will. The third and fourth .solemnities required by the statute are the attestation and subscription, in the presence of the devisor, by three or more witnesses. The liberal construction which the «curte put upon the word signing necessarily raised a question upon the import of the word attesting, as applied to the will. 1st. Whether the witnesses were to attest the very act of signing, or whether an acknowledgment by the testator that the act was done by him, and that it was his hand-writing, was not sufficient to enable the witnesses to attest; and it was held that the acknowledgment was sufficient. Powell, 72. 74. 3 P. Wms. 253. 2 Vez. 454. 2d. Whether the witnesses are to attest and subscribe at one and the same time ? and held that it might be at different times. Powell, 110—112.
    3d. The next question was on the words “ in the presence of the testatorand the courts held that in the presence was synonymous to within the view ; that is, that it was within the power of the testator to see ; that he might see, but not necessary that he should actually see. Salk. 688. Garth. 81. 1 Eq. Ab. 403. Powell, 90. 3 Salk. 395. Nicholas v. Smirk. If it vías possible for the testator to see the witnesses subscribe — -the rule is, if it is in the power of the testator to see the witnesses, what is done shall be construed to be done in his presence. Powell, 92. If not possible, ahter. See cases put, Powell, 92. (bottom.) 93, 94. All these instances show that ever since the statute, the courts of law and equity will lean in support of a fair will, and not defeat it for a slip in form, where the meaning of the statute has been complied with. Powell, 97. Doug. 241. Whether witnesses attest in the presence of the testator, is a fact for the consideration of the jury upon all the circumstances of the case. Powell, 98. Com. Rep. 531. Characters of witnesses is one circumstance. The rule that if the testator might see, or that if it was in his power to see that the act was done in his presence, is a rule of presumption of evidence, not a presumption of law, and every presumption of evidence or law must stand donee probatur in contrariara. 2 Bro. Ch. Gas. 516, 517. Under this idea, when proof is offered that it was in the power of the testator to see, the jury may and ought to conclude that he did see; but when it is proved that it was not in his power, the conclusion fails. The case of curtains drawn, turning his back, shutting his eyes, &c. &c. all turn on this principle. All the cases are, 2 Salk. 688. 1 Eq. Ab. 403. pl. 8. cited Carth. 81. Comb. 158. and 3 Mod. 359. 12 Mod. 37. 3 Salk. 395. Esp. 188. If not possible for the testator to see the witnesses subscribe the will, it is void. Carth. 79. S. C. Comb. 156. 1 Show. 89. Cases temp. Holt, 222. 1 P. Wms. 239. 740. 2 Show. 288. 1 Bro. Rep. 91. Doug. 241. 1 Bro. Parl. Cas. 137. It is not law that Mrs. Lux ought to have it in her power to see the witnesses attest her will, from her position in bed, nor supported by any one case cited by Potuell on Devises, from 93—100. inclusive, but directly the contrary, if the cases are carefully examined. All the cases show that it is sufficient if from the place, or chamber, or room, the testator can see the witnesses when they subscribe his will. Powell on Devises, 92; says, “ Though the signing be in a room or chamber immediately contiguous, yet the devise will be void, unless the testator is in a position in which he can, if he please, without changing his situation, see the witnesses subscribe,” and cites cases to maintain this opinion,, What Mr. Powell meant by the testator being in a position to see the witnesses subscribe without changing his situation, can only be ascertained by examining the authorities to which he refers, and none of them justify the argument of the counsel for the appellants, (or the opinion of the general court,) that the signing of the witnesses in a room, communicating with the room in which the testator might stand, set in a chair, or lay in a bed by a door which remained open during the transaction, shall not be good, but the will void, unless the testator might have seen the witnesses when they attested the will, without moving from the spot where he stood, sat or lay. The .case most applicable to the present is that of Davy & Nicholas v. Smithy 3 Salk. 395. and cannot be distinguished from the case before the court, either in facts or principle.
    
      Martin,
    
    (Attorney-General,) on the same side. In addition to the observations of the counsel who last addressed the court, I would add a few both as to the facts and the law.
    First as to the facts. The judges of the general court’s certificate doth not state the facts correctly. It was made out some time after the trial. There was no previous-communication between them and the appellee’s counsel, for the purpose of refreshing their memories, and settling the evidence.
    The witnesses who conceived that Mrs. Lux, from her position in bed, could not see them sign the will, spoke only from their general idea and recollection, at that distance of time, of the place where the bed stood, and where the table or desk stood, and not from any observations made by them at the time when the will was signed, to discover whether she could see them, as they declared} for they declared they did not know it was necessary she should be able to see them.
    A small difference as to the places of the bed or the desk from their ideas, might make a material difference as to the one object being visible from the other.
    When Richardson Stewart made the experiment mentioned by him, the bed was standing close to the walls } but nothing is more probable than that Mrs. Lux's bed was removed at some distance from the adjacent walls, for the convenience of the nurses and servants having access to her for different occasions ; also Mr. Stewart had no knowledge where the bed or the desk were at the time of the signing, except by the information of Mary Chambers, who could, and did only, speak from her general recollection of circumstances which had long passed, and which were not then supposed, or attended to as material.
    
      In opposition to the idea which the witnesses had of the extreme weakness of Mrs. Lux, which had induced one of them to think she could scarce write her name, the original will, which was before the jury, showed that she had written her name fairly, and with a steady hand, without any marks of such imbecility.
    It appears also from the evidence, as stated by the court, that Mr. Russell, a judge of the orphans’ court, long in the habit of receiving the probate of wills, and perfectly and familiarly acquainted with the necessity of its being signed in the presence of the testatrix, was the person whom Mrs. Lux confided in, as her particular friend, to have her will properly prepared and executed, so as to effect such dispositions as she was anxious to make ; that he directed Mr. Johnston to draw it; when drawn, received it from Mr. Johnston, and with an apparent zeal undertook the whole charge of the execution. He was the person who took the witnesses into the adjoining room to sign the will; the will itself, as appears now on the record, in the form of the attestation, written thereon, states its being signed in the presence of the testatrix. Independent of his familiar knowledge of that circumstance being necessary, the form of the attestation of the paper, then in his hand, pointed out the necessity, and could not but have refreshed his memory ; the judges5 notes of the evidence show that he appeared very particular in pointing out the witnesses to sign in the presence of each other; can it be presumed he was less attentive to a circumstance so much more essential ? It must be supposed he took care to observe that the desk was in such a relative situation kq the bed, that the testatrix might see them ; that the door was left open (for it was left open) in order that it might be in her power % and that although the other witnesses, not knowing it was necessary, did not attend to that circumstance, he, who knew the necessity, and who had undertaken to have the will properly executed, did attend to it. The will must, in this respect, have been well executed, or we must suppose he intentionally abused the confidence of Mrs. Lux in what might have been almost her last moments; and while he was ostentatiously professing to serve her, was privately defeating every anxious wish she had formed, intrusted to him, and which he had engaged to fulfil.
    The execution of the will having been under the superintendance of Mr. R. and under such binding and confidential circumstances, is, to the human mind, a million of times stronger proof that it was duly executed, than the vague ideas of the witnesses as to the relative positions of the bed, &c. and this was proper for the jury to consider, and was strongly urged.
    In Com. Rep. 531. the witnesses to the will were all dead. The attestation did not state that it was signed in the presence of the testator. The court determined it was proper to be left to the jury; and one of the witnesses to the will having been a lawyer of good character, and, therefore, likely to know the necessity, and to see to the due execution of the will, is urged as a circumstance which ought to have weight.
    Our case is infinitely stronger under all the circumstances ; ours is a judge of the orphans’ court, well knowing the necessity, in the constant habit of taking probates of wills, and peculiarly confided in, and employed by one who considered him as her particular friend, to see every thing necessary and proper done to effect her last wishes.
    As to the law. It is solemnly determined, and that by decisions soon after the statute of frauds, that it is not material whether die testator doth see the witnesses write their names, and so the court declared in this C^S6«
    The appellants rely on the position in Powell at the bottom of p. 92.
    “ But though the signing be in a room or chamber immediately contiguous, the devise will be void unless the testator is in a position in which he can, if he please, without changing his situation, see the witnesses subscribe.”
    The law is so ; but all that is necessary is to determine what is meant by changing his situation.
    The man who is in bed, with curtains closely drawn, by opening the curtains might see the witnesses. The man who is sitting in the room with his back towards the table, by turning round might see ; where a screen happens to be intervened between the testator and the witnesses, the testator by removing a little the one way or the other might see, but in all these cases, in a strict sense of the word, a change of situation is necessary.
    The court by their explanation have declared that the per» son must be able to see the witnesses sign, without any change of position, meaning, if I can conceive their meaning, that there must be no change in the local position of the body of the testator, or any part of it; for if they will allow it in any part, it may be curious to know in what part; and if they will allow it in no part, then the opinion given is a felo de se, for, on such a construction, it would b& impossible that the person should not see, provided he could see; since to see an object which in any position is not seen, must requiré a change of the position of the body, or some part of the body. But perhaps the court means the testator might turn round ; yet this would be a change of his position. Perhaps they would let him stretch forward his neck to see; in that case there would also be a change of position, and it would also make the validity of a will depend on the length of a man’s neck. Perhaps they only mean that the testator’s feet shall remain firmly fixed to the spot, but to give him leave by every exertion of body, to project his head as far as possible in any directions to see the witnesses; in that case a tumbler would have a better chance than another in similar circumstances, because he might project his body its full length, and, by a dexterous spring, recover his former position ; and a man six foot long would have three chances that his will should be duly executed, where a man of four foot long would have but two, provided their dexterity was equal.
    To my conception there never was a more absurd opinion given, nor more contrary to the true meaning of the passage cited from Powell.
    
    An the position which was the groundwork of their opini n is taken frdm Powell, it is but fair that Powell should illustrate and explain it, which, in the following pages, he doth, and refers to a variety of cases. In explanation of this position, and to show what he means by that change of situation which is inadmissible, he goes on immediately in the following words : “ Thus where, on a trial at bar,” &c. and puts a number of cases, all which prove that by a change of situation, he means the testator must be able to see without leaving the room, the coach, the chamber, &c. in which he is at the time, and not that he must be able to see without leaving the particular spot in the room, the coach, or the chamber, &c. which hr might occupy.
    In the first case put, the will was signed by the testatrix in the bedchamber, the witnesses signed in the hall j to go to this hall they had to go into a passage, and to go down a flight of eight or ten winding stairs. The rooms were on different stories of the house, and no possibility of seeing from the bedchamber what was doing in the hall below. The case is express that it was “ not possible from her chamber to see what was done in the hallit is not said from the place where she sat or lay in her chamber. There was also positive proof that the testatrix did not leave her chamber.
    So the next, the will was signed by the witnesses down stairs in another room, consequently, could not be seen from the room where the testator was.
    In the third case from Shower, the court and counsel thought it a proper case for a special verdict, but the jury there obstinately found against the will, for which they are censured in Shorter.
    
    The statute of frauds was passed in the 29th of Charles II. The case in 2 Shower was in the 35th Charles II. This was the first case after the statute in which this point came in question. The court and counsel wished for a special verdict, that it might be considered and the law settled. But the jury finding a general verdict against the will, and persisting therein, was in that case conclusive.
    The next case was that of Shiers and Glascock, Powell, 91. which was about four or five years after, to wit, the 3 Jac. II. There the court settled the principle, and the decisions have been consonant ever since. There is reason to believe had a special verdict been found in the case in 2 Shower, the court would have decided in favour of the will.
    In the case of Skiers and Glascock, the witnesses went out of the room, passed through a lobby into a gallery ; this lobby had glass doors and some panes broken; the case states that the testator might have seen from his bed, through the lobby and the broken glass, the table wh< re the witnesses subscribed. It is not stated that he could see from the part of the bed where he then lay, or that, in the position he then lay, he could see without changing it; indeed, from the description, it is almost impossible that, laying horizontally on the bed, and without raising himself up therein, he could have seen the table, much less persons writing upon it; it is certain he could not see the paper in any manner so as to know its identity.
    In the case of Davy v. Nicholas, 3 Salk. 395. Powell, 91. the witnesses left the room, went through a small passage into another room, and signed it on a table standing in the middle, and opposite the door; both doors were open. The case states as a material circumstance, that the table stood opposite the door, for otherwise, as there was an intervening passage, the testator could not 
      have seen them from his room. But the case doth not state, nor was it necessary, that the bed of the testator was opposite to the other passage door, or that from the bed, or while the testator lay thereon, he could have seen the witnesses sign.
    The case of the lady who signed her will in the coach, Fowelif 92. the witnesses returned into the lawyer’s office to sign it; her coach having been put back opposite the window of the office, and it being proved by a person in the coach that the testatrix might have seen what passed, it was sufficient. No proof in this or the other cases, no pretence that she did actually see; no proof that she could have seen from the particular part of the coach on which she was seated. But if she might have seen from the coach it was sufficient. The coach necessarily put back to bring it into a situation similar to the case of a room or chamber.
    The one or the other must have a certain relative situation to the place where the witnesses sign, so that from the coach or from the room, &c. they might be seen.
    Our case is stronger than either of these three. In ours, the witnesses signed in a room immediately adjoining, on the same floor; the door wide open. In each of the other cases, some intervening space between the room of the testator and the room where the witnesses signed,
    The design of the statute was, that a false will may not be palmed on the witnesses, or on the testator. In going from the bedroom through the lobby into the gallery, in the case of Skiers v. Glascock; from the bedroom through the passage into another chamber, in the case of Davy v. Nicholas, and from the coach into the lawyer’s study or office, in the case of Casson v. Dade$ afforded as much opportunity for interposing a false will as there could possibly be in the present case; nor could those who made the respective wills in those cases, possibly, from any view they could have had, been more capable of distinguishing the identity of the paper signed, than Mrs. Lux in our case. Yet the courts there, satisfied the transactions were fair, held the statute of frauds suf- ... . ficiently complied with.
    Here is no possible doubt but the will is genuine; that is admitted by all; Mrs. Lux signed it; but a few moments intervened for the attestation; it was instantly brought back and delivered into her own hands, and all this under the immediate view and direction of her friend and confidant, who would prevent all imposition. And Lord Mansfield, in Douglas’s Rep. 241. Powell, 97. declares, when a will in other respects has been fairly and duly executed, its not being witnessed in the presence of the testator is but “ a slip in form,” and the court will not defeat it, in any case where there is a measuring cast, and room for presumption.
    In fine, it is admitted that in our case the meaning of the statute has been fully complied with. A slip in form lias been alleged. The chancellor might have himself decided on the evidence ; or might have sent it to a jury to satisfy his conscience. He did the last. The question was fully investigated. The jury found the will duly executed as to its being signed in the presence of the testatrix. They had evidence from which they had a right, and they ought to have presumed it, in favour of a will admitted in ail other respects to be duly executed.
    Their finding, and the evidence, was consistent with the law, as originally declared by the court; as the court explained their opinion, that opinion was erroneous and absurd.
    The chancellor was satisfied with the verdict, both as to law and fact. His conscience was satisfied. It would ■have been absurd to have granted anew trial, when, upon the facts, as disclosed, and the law, as by him rightly understood, the verdict was proper. But, if the appellants wished to have had a new trial, they ought not to have gone to final hearing, but have appealed for that cause. Had they even then appealed, I am satisfied the consciences of the judges of the court of appeals would have been as well satisfied as was the chancellor’s, and that they would have thought a new trial as unnecessary as the chancellor did; and that now they will sustain a conscientious and equitable decree, carrying into execution a will fairly and honourably executed, by a most amiable worthy lady, having a perfect right to make the disposition she made; a disposition which from many motives she was induced to make, and whose last moments would have been embittered, could she have supposed it would have been contested.
    
      Cooke, in reply.
    In this case the chancellor might, if he pleased, have proceeded to the issuing a commission, and have brought the whole testimony before him in the first instance, upon which a decree might have passed. And upon such proceeding, an appeal, it is certain, would lay, and this court, having the evidence before them upon which the decree was founded, might certainly revise the case, and either affirm, reverse, or alter the decision as they should think justice required. But the chancellor has thought proper to order an issue to be tried to ascertain whether the will was executed in the manner and according to the directions of the statute of frauds. Upon the trial of which issue, a bill of exceptions was taken, upon which the whole evidence given is stated, and upon which the judges of the general court have given their directions, also stated, to the jury; a verdict was found, which is also stated, a motion for a new trial, and the rejection thereof, and final order and decree of the chancellor. And the defendants’ objection is, that this court ought not to take notice of any of these facts,
    1st. Because the chancellor was not hound by the direction of the court to the jury, nor by their opinion of the law.
    I admit it. But the chancellor is as much bound by the law as the general court were, and if he has erred in his judgment, this court ought to correct his decision. But how is this court to know whether he erred or not, unless the evidence is before them ? That evidence is now brought forward, and this court is no more bound by his opinion than he was by the opinion of the judges. They will respect the opinion of both; but judge for themselves from the evidence given; from the facts the law arises.
    2d. Because the evidence might appear different to the jury than to the court.
    That is impossible. The evidence given to both was the same, and must appear the same. The jury might draw conclusions of fact from the evidence, but ought not of law; if they do, and it is erroneous, the court ought to correct it. The court do so at law, by setting aside the verdict, and granting a new trial, and may do so in chancery, by decreeing according to the evidence, where it is brought before the court stated upon a bill of exceptions; or of ordering a new trial, if from the report of the judge who tried the issue, he was dissatisfied with the verdict. But if the chancellor refuses a new trial, and proceeds to a decree where the evidence is made part of the proceedings, this court, having all the facts before them, may certainly correct any errors in that decree j but if no evidence is returned, and the chancellor refuses a new trial on motion, if the party does not appeal, but acquiesces in that dcteimination, and go on to a final hearing, this court would not probably have any evidence before them to show what the facts were but the verdict, and if it was a general verdict, it would show no facts at all upon which this court could act to correct errors which did not appear upon the general equity of the case. Our case, however, is quite otherwise ; all the facts do appear, and if there has been erro? in law, or fact, this court must correct it.
    
      Suppose a special verdict is found, upon which the chancellor decrees, will not an appeal lie from his decision ? There can be no doubt of it, and this court would correct such decree if erroneous.
    Suppose the jury state the facts, and draw an erroneous conclusion in law, will not the court correct it ? But if the facts are stated on a bill of exceptions, has not the court the same power ? It would be strange, indeed, if they had not.
    3d. Because the fact, it is said, whether the testatrix could see the witnesses, is a presumption of evidence, and not of law, and this presumption the jury have a right to draw, and might do it different from the court.
    Whether the testatrix did see or not, is certainly a presumption arising from evidence; but that she must be in a situation to be able to see without changing her position is the declaration of law ; otherwise, to say that if she had changed she might have seen, as the jury have said in this case, is in fact to defeat the law altogether j for a person might see if the witnesses had gone into another house, and she would have followed them. But to say that if she had changed she might have seen, is a negative strongly implied that as she did not^change, she could not see. But we add, further, there is proof she could not change, and, therefore, she could not see.
    4th. Because there ought to have been an appeal from the refusal to grant a new trial.
    All the cases cited to this point are very far from being similar to the case now before the court; most of them are cases where he chancellor ordered a new trial, (7 Bro. 272. 4 Bro. 614. 3 Bro. 220. 5 Bro. 191. 7 Bro. 208.) and that order was appealed from. In most of these cases the judge and the chancellor were of the same opinion as to the verdict, and in no instance was there a verdict given against the- opinion of the judge upon any point of law, nor in any instance cited any bill of exceptions stating the evidence. These, toe Were all cases of simple facts before the jury, and genefal verdicts given.
    The other cases cited, (6 Bro. 442. 7 Bro. 9. 243. 522. 505.) are cases where a new trial was refused ¡ but in all of them there were further orders and decrees made, merely on the refusal to grant a new trial. Upon a motion for new trial, if it is refused, there is no order or decree made, and, consequently, no appeal could lie on the mere refusal; but if the chancellor then goes on to make an order, or decree, on the merits, there may be an appeal, and upon that appeal the propriety of refusing the new trial in the cases cited was argued.
    In one case, (7 Bro. 243.) in the argument of counsel, it is said that the party ought to have appealed from the refusal to grant a new trial, and that, as he acquiesced in that refusal, and was satisfied with it, it was too late to object to the verdict on an appeal from the decree on the final equity. But in that case, both the judge, who tried the cause, and the chancellor, were satisfied with the verdict, and there is nothing in the case to show that the decree was affirmed, because the party omitted to appeal when a new trial was refused.
    I have carefully examined, and there is no dictum in any book, which says the objection against the verdict v/ill not lie upon an appeal from a decree on the merits, and I add, it is impossible the law should be so, if it appears upon the record what the evidence was upon, which that verdict was given.
    Because it appears there has been appeals in cases where, by an order of the court, a new trial was granted, and where it has been refused, and another order made, as in the case now before the court, (see 7 Bro. 9. 505. 6 Bro. 442.) does that prove that no objection will lie to the verdict upon an appeal from the final decree? Why was not that objection made in 7 Bro. 9. 505. and 6 Bro. 442.? In those cases, upon an appeal on subsequent orders, the house of lords rectified the arder respecting a new trial.
    
      It is said this is a general verdict, and that the jury having stated the evidence was surplusage, and ought to be rejected. But I differ widely from this assertion, and think the law quite the contrary; for if a jury state the facts, and draw a wrong conclusion, the court will set aside the verdict in all cases.
    But I care not whether this was a general or a special verdict. It was taken merely to satisfy the" conscience of the court. The court was not bound by it if the verdict had been much more general, but might have decreed even against the verdict. The court could be under no restraint to do so, after the whole evidence was returned to the chancellor. Nor can this court be restrained, having fully the means of judging upon the whole case whether the jury or the chancellor erred upon the subject.
    If the chancellor was not concluded by the verdict, but might have directed a new trial, or even decreed against it, certainly this court, knowing the facts, may do the same, or they have not the power of doing complete justice.
    It is, then, only to be considered whether this will was executed as the statute of frauds directs. To this point I refer the court to my former argument; and, I think, dispassionately considered, the case will not admit of a doubt. If this court should think so also, their decree must be generally to reverse the final decree of the court of chancery.
   The decree of the Court of Appeals.

After hearing counsel on this appeal, ordered and adjudged, that the aforesaid decree, so by the said chancery court made and decreed, be reversed and annulled; and we do order and decree, that another trial be had therein before the judges of the general court upon the same issue; and it is further ordered by the court here, that a copy of this decree be transmitted by the clerk of this court to the court of chancery, that the chancellor may cause justice to be done in the said suit between the said parties according to the tenor hereof, and the course of the said court: and that the court of chancery give .. . r . , . all necessary directions tor carrying the above into execution.

Jenings, S. Johnston and Cooke, for the appellants.

The Attorney-General, Pinkney and Robinson, for the appellees.  