
    
      Elizabeth Wright et al. appellants, vs. James A. Lewis and Charles Walker, ex’ors. of Thomas Terry, appellees.
    
    If testator might have seen the witnesses subscribe their names to the will, the attestation is sufficient.
    Testator being in ordinary health, capable of walking, hearing and seeing, after executing his wilt in the piazza, near the door, left his seat to be occupied by the witnesses whilst subscribing their names, and stepped into and remained in the adjoining room, from which he might have seen the witnesses subscribe their names. Held, that the attestation was sufficient.
    That the witnesses remained and attested the will exactly where the testator signed it, held, to make an important distinction between this and other cases where the will was removed from the place where the testator signed.
    
      Will of testator, who was insane both before and after its execution, established— the jury having found that it was executed in a lucid interval, ()
    
      Before O’Neall, J. at Chester, Fall Term, 1851.
    The report of his Honor, the presiding Judge, is as follows. “ This was an appeal from the decision of the Ordinary, admitting to probate the last will and testament of Thomas Terry, deceased.
    “ The appellants are the brothers and sisters of the deceased. The will bequeaths his entire estate, consisting of (I think) seventeen slaves, to his two illegitimate female children, with cross-remainders in the event of dying without respectively leaving children, and an executory devise over on the failure of children of both to the brothers of the deceased.
    It was not denied that Thomas Terry had been a lunatic, both before and after the execution of the will. An inquisition of lunacy had found him to be a lunatic, 28th June, 1842; his estate was committed to a committee, James A. Lewis, one of the executors, and so continued to his death. He was an inmate of the Lunatic Asylum, Columbia, from 1839 to 1843. In this latter year he was discharged, not as cured, but as so much improved that he could safely return to his friends. The will bears date Ihe 9th of May, but was really executed 25th May, 1849. He was returned to the Asylum in August, 1849, and there died 11th March, 1850.
    “ Three questions were made by the appellants. — 1st. Was the will duly executed according to the Act of 1824? 2d. Was the testator of sufficient capacity to make a will ? 3d. Was the will obtained by undue influence ?
    
      “ The first question arose out of the doubt supposed to exist, whether the three subscribing witnesses, Adam Walker, Alexander Walker and John B. Stokes, signed in the presence of the testator. He was in good bodily health. One of the witnesses, Adam Walker, said the will was executed in the room where they all were sitting around the fire-place. The two other witnesses said the testator and the witnesses walked out into the piazza, and the testator signed the will at the end of the table near the door; that after he had written his name, he was in the act of getting up, when the necessity of a seal was suggested ; he sat down, made a seal, and stepped into the house. Alexander Walker said he could have seen the witnesses sign: John B. Stokes said he could not. None of them, however, pretended to know where he was in the house when they signed. If he was standing up near the door, or at the window opening into the piazza, he could have seen. Jf he was sitting-in front of the fire-place and near a window where he commonly sat, and where the witnesses found him sitting on their return after the execution of the will, he could not have seen. The testimony on this issue was carefully analyzed and presented to the jury. They were told, if Adam Walker was right, there could be no room to doubt that the witnesses did sign in the presence of the testator. If Alexander Walker and Stokes were right, then the question was, could the testator see them sign ? I told the jury that where the testator was in ordinary health, and capable of hearing, walking and seeing, and was in a room opening into the piazza where the will was executed, I should be slow to believe he did not see the witnesses sign. Still, it was a question for them, and they were told if he might have seen the witnesses sign, it was sufficient.
    “The other questions of capacity and fraud and undue influence, were so purely of fact, that I do not perceive the necessity of reporting the evidence in detail. My notes will be at the hearing, and can be referred to when needed. I will merely explain and answer the grounds of appeal.
    “The testator had been advised, through his committee, by eminent counsel, that he could make a will, and that it would be better for him to write it with his own hand. Wm. A. Walker, Esq. proved that the testator gave him instructions how to write the will; that he accordingly wrote it; that- he read it to the testator, and that the testator himself read it; it was left with him on the 9th; and executed two weeks after. Commenting on this part of the case, I said to the jury, if the facts were stated truly by Walker, it was just as satisfactory of the sanity of the testator as if he had written the will himself.
    “ In speaking of Stokes’s testimony, with whom Terry lived for near four years, from fall of 1845 to summer of 1849, and who had pronounced him always insane, I said to the jury, that Mr. Stokes’s intercourse with the testator was such that he ought to know more of the testator’s mind than perhaps any one except a physician; but yet it might be from his constant association with him, and his settled conviction of his general madness, that he might not have noticed what to other witnesses seeing him less seldom might be more apparent.
    “ I said to the jury, that if testator was sane at the execution of the will, and understood the act which he did, it was sufficient.
    “As to che children, (the legatees) the proof was clear that the testator, before his insanity, during his insanity, and in the will itself, acknowledged them as his children. He declared at all times his wish to give them his property. During the life of his mother, the children lived with her. After her death, his brother Stephen took one and has her yet. If the 6th ground by “ the best evidence,” means, that the mother was not sworn as to the paternity of the children, such was the fact.
    “ There was no evidence that the will was obtained by imposition, undue influence or fraud. If the witnesses, Adam Walker, Alexander Walker, Wm. A. Walker, Esq. Dr. A. P. Wylie, Dr. John A. Reedy, Dr. Cornwell, John R. Nicholson and James Walker, were to be believed, he was perfectly sane at the execution of the will, and it was his free and voluntary act.
    “ The appellants had the testimony of John B. Stokes, T. Lipsey, Biggers Mobley, Elijah Walker, Franklin Walker, Mrs. Mary Linn, Col. Samuel Mobley, Alexander Walker, Jane Kennedy, Sarah E. Jones and Mrs. N. Lipsey, that he was of unsound mind and incapable of making a will.
    “ The testimony was fully summed up. and carefully presented to the jury, with the instruction, that as the lunacy of the testator was established, they must be satisfied that the will was the result of a clear, lucid interval. That the burden of showing that the will was executed in a lucid interval rested on the executors.
    
      “ The jury found for the will. Their finding meets my entire approbation.”
    The defendants appealed, and now moved for a new trial, on the following grounds.
    1. Because the plaintiffs wholly failed to prove that the will was signed by the witnesses in the presence of the testator.
    2. Because his Honor erred in his charge to the jury, as defendants suppose, in saying to them, that if the testator was in a place where he might have seen, so far as you know, if he wanted to have done so, that was sufficient in law.
    3. Because his Honor said to the jury, it will not make one particle of difference whether the will was in testator’s own hand-writing, or written by another, under his instructions given to the writer.
    4. Because his Honor said to the jury, that those who were always with lunatics, are more likely to think them insane than strangers ; whereas, he should have told them, that they were the most competent to judge of their capacities.
    
      5. Because his Honor said that if the testator was sane for one moment, at the time of signing the will, that was sufficient.
    6. Because the best evidence as to who was the father of the children of Sally Smith, the devisees, was not produced.
    7. Because the will was obtained by imposition, undue influence and fraud, on T. Terry, who was a mad man and insane.
    Dawkins, Thomson, for appellants.
    
      Gregg, McAlilly, contra.
    
      
      ( a ) For the definition of a lucid interval, see 2 Ev. Poth. 668; Shelf, on Lunatics, Introd., p. 69, et seg.
    
   The opinion of the Court was delivered by

O’Neall, J.

The two first' grounds of appeal make the question whether the witnesses to the will subscribed their names in the presence of the testator. The jury have so found: and, unless they were improperly instructed, or their vordict be flagrantly against the facts, I do not perceive any just legal reason why the appellants should complain.

The instruction was to the jury in the precise words used by the law writers ; — they were told in the very words of Jarman, (vol. 1, p. 105) to enquire whether he (the testator) might have seen the witnesses sign. There was then no wrong instruction. Did the facts shew that the testator could not have seen ? or, perhaps more properly, did they shew he might have seen ? || He was in ordinary health ; he and the witnesses walked into the piazza to execute his will: he wrote his name, and was in the act of getting up, when one of the witnesses suggested the propriety of a seal: he resumed his seat, at the end of the table near the door, made his seal, and then surrendered his seat to the witnesses to sign their names: he stepped into the door of the sitting room: if he remained in or near the door, or was walking about the room, he could have seen the witnesses sign: or if even he was sitting where the witnesses, after the attestation, found him, he could, by rising out of his chair and moving a step or two, have seen each witness write his name. So, too, he was in hearing of every thing occurring in the piazza at the' table, where the will was executed and attested.

These circumstances make out a case of constructive presence, where the testator might have seen the witnesses sign.The, object of the statute, in requiring the witnesses to sign in the presence of the testator, was to prevent the fraudulent substitution of another paper for the testator’s will. In all the cases heretofore, the will was taken from the actual presence of the testator to be attested, and then, of course, it was necessary to be shewn he still had the power to see the attestation. Here the will remained exactly where the testator signed it: he left the witnesses when he knew they were attesting it. This makes a very important distinction : and shews, most conclusively, he might have seen, if he would. It comes up to what Judge Richardson said in Reynolds vs. Reynolds, (1 Sp. 256). Speaking of the necessity that the witnesses should be in such a position that the testator could have seen them sign, “which, (says he) means, that they must not withdraw themselves from the continued observance of his senses, although the testator may, himself, refrain from using such senses.”

Here, too, the testator was in ordinary health, capable of walking, hearing and seeing. This, too, constitutes a very important distinctionin most cases of wills, the testator js in sickness, if not in extremis. It seems to me, that this will was much more attested in the testator’s presence, than where a will was executed by a sick person, who, the instant he signed, fe back in bed and drew his bed curtains, so that in fact he did no see : yet the witnesses attesting by his bed-side, it was hold, did so in his .presence. Why? Because he could,'by “an” easy effort,” removing the curtains with his hand, have seen ; or, perhaps, he could hear every thing going on, and, therefore, there was no danger of imposition. Both reasons are found in this case, — an easy effort could have placed the whole scene in the testator’s view; so he could hear every thing said or done.— There was no danger of imposition, and hence the statute is satisfied. ii

The case of Doe d. Wright vs. Manifold, (1 M. & S. 294,) does not stand in our way. For there the witnesses removed the will after execution from the sick chamber to another room, (and there attested. The jury found specially, that the testator was in such a situation he could not see the witnesses sign. That was the reason which Lord Ellenborough gave for deciding against the will. Had it not been for that, he said he would have had great doubts, notwithstanding the removal of the will from the sick chamber to another room, and where it was necessary for the testator to have left the bed, and to be seated in an easy chair, and then to advance his head into the passage. If a case thus situated would have created doubts of the learned C. J. may we not reasonably infer, in a case like this, sustained by the verdict of a jury, he would have been entirely satisfied ? The case of Casson vs. Dade, (1 Bro. C. C. 99,) where the lady executed the will, in her carriage, and the witnesses attested in an adjoining law office, would be more like this : — there sitting in the carriage, by putting her head out of the window oí the carriage, she might, through the office window, see what was going on. There, as here, an easy effort” would have enabled her to see: but there it is not noted, that she could hear every thing done or said : here, that is the fact, and, in this respect, this case has the advantage of that. The Court is satisfied with the verdict on the question of attestation in the presence of the testator.

The other grounds are sufficiently answered by the report of the Judge below.

The motion is dismissed.

EvaNs, Wardlaw, Frost, Withers and WhitNer, JJ. concurred.

Motion dismissed.  