diately followed these items, it was held that it was subscribed at the end of the will.

A question similar to the one involved herein was presented in Soward v. Soward, 1 Duv. 126. The statute of Kentucky required the witnesses, as well as the testator, to "subscribe" the will with their names, which the courts of that state construed to mean that they should write their names at the close of the will. In the will then before the court the witnesses wrote their names, as did the testator in the present case, on the outside or fourth page of the sheet after it had been folded, and across it as so folded. The court held that this was not a compliance with the statute, saying: "So far from subscribing their names to the will, it may be said with much more propriety and accuracy of speech that they merely indorsed the paper enveloping and enclosing the will, without any accompanying writing or memorandum to indicate the purpose of the indorsement, or showing any connection whatever between the indorsement and the will." In Roy v. Roy's Ex'r, 16 Grat. (Va.) 418, 84 Am. Dec. 696, the sheet of paper upon which the will was written was folded in the form of a letter, and the words, "David M. Roy's Will," were indorsed upon the back in the handwriting of the deceased at about the middle of the third page when the paper was unfolded. His name was not signed at the end of the writing. The court held that it was not entitled to probate, saying: "It is an unusual mode of signing or authenticating a paper as a concluded act by indorsing the name of the person executing it on the back. Such indorsement is usually made as a label or mark to distinguish it from other papers, and probably it never occurrred to the deceased that it was to have any other function in this case." The same rule was followed in Warwick v. Warwick, 86 Va. 596, 10 S. E. 843, 6 L. R. A. 775; Patterson v. Ransom, 55 Ind. 402.

Whether the deceased intended to execute his will in conformity with the requirements of the statute cannot be shown by parol or extrinsic evidence. Parol evidence cannot be admitted to show that the testator intended the space signed by him to be the end of the will, if, upon an inspection of the instrument, it appears that it is not in fact at the end. Evidence will not be received for the purpose of showing that he intended to comply with the requirements of the statute if it appears upon the face of the instrument that he had not in fact so complied. It must appear upon the face of the will itself that its physical execution is in accordance with these requirements. Matter of Hewitt's Will, 91 N. Y. 261; Warwick v. Warwick, 86 Va. 596, 10 S. E. 843, 6 L. R. A. 775; Patterson v. Ransom, 55 Ind. 402.

Under these considerations, it must be held that the testator did not comply with the requirements of the statute in the execution of his will, and the judgment of the superior court is therefore affirmed.

SUBSCRIBING WITNESSES MUST SEE THE TESTATOR SIGN

HIS NAME

IN RE MACKAY'S WILL

110 N. Y. 611, 18 N. E. 433 (1888)

EARL, J. The subscribing witnesses came to the dwelling-house of the deceased by previous appointment, and, while seated at his writingdesk, he said to them: "Gentlemen, what I sent for you for was to sign my last will and testament." Thereupon he took from his writingdesk the instrument offered for probate, and, laying it before the witnesses, said: "It is now all ready, awaiting your signatures." He then presented the instrument to the witness McCarrier for his signature, and he signed it, saying, as he did so, "I am glad, Father Mackay, you are making your will at this time; I don't suppose it will shorten, your life any," to which he replied, "Yes, he wanted it done, and off his mind;" and then the witness Mulligan, who had joined in this conversation, signed, the instrument, as a witness. At the time of exhibiting the instrument to the subscribing witnesses he told them it was his will; but he handed it to them so folded that they could see no part of the writing except the attestation clause, and they did not see either his signature or seal.

There would undoubtedly have been a formal execution of the will in compliance with the statutes, if the witnesses had at the time seen the signature of the testator to the will. Subscribing witnesses to a will are required by law, for the purpose of attesting and identifying the signature of the testator, and that they cannot do unless at the time of the attestation they see it. And so it has been held in this court. In Lewis v. Lewis, 11 N. Y. 221, where the alleged will was not subscribed by the testator in the presence of the witnesses, and when they signed their names to it it was so folded that they could not see whether it was signed by him or not, and the only acknowledgment or declaration made by him to them, or in their presence, as to the instrument, was, "I declare the within to be my will and deed," it was held that this was not a sufficient acknowledgment of his subscription to the witnesses within the

In that case Allen, J., writing the opinion, said: "A signature neither seen, identified, or in any manner referred to as a separate and distinct thing, cannot in any just sense be said to be acknowledged by a reference to the entire instrument by name to which the signature may or may not be at the time subscribed." In Mitchell v. Mitchell, 16 Hun, 97, affirmed in this court in 77 N. Y. 596, the deceased came into a store where two persons were, and produced a paper, and said: “I

have a paper which I want you to sign." One of the persons took the paper, and saw what it was and the signature of the deceased. The testator then said: "This is my will; I want you to witness it." Both of the persons thereupon signed the paper as witnesses, under the attestation clause. The deceased then took the paper, and said: "I declare this to be my last will and testament," and delivered it to one of the witnesses for safe-keeping. At the time when this took place the paper had the name of the deceased at the end thereof. It was held that the will was not properly executed, for the reason that one of the witnesses did not see the testator's signature, and as to that witness there was not a sufficient acknowledgment of the signature or a proper attestation. It is true that in Willis v. Mott, 36 N. Y. 486, 491, Davies, C. J., writing the opinion of the court, said that "the statute does not require that the testator shall exhibit his subscription to the will at the time he makes the acknowledgment. It would therefore follow that when the subscription is acknowledged to an attesting witness it is not essential that the signature be exhibited to the witness." This is a mere dictum, unnecessary to the decision in that case, and therefore cannot have weight as authority. The formalities prescribed by the statute are safeguards thrown around the testator to prevent fraud and imposition. To this end the witnesses should either see the testator subscribe his name, or he should, the signature being visible to him and to them, acknowledge it to be his signature. Otherwise imposition might be possible, and sometimes the purpose of the statute might be frustrated.

We think, therefore, that probate of the will was properly refused, and that the judgment below should be affirmed, without costs. All

concur.

THE DOCUMENT MUST BE SIGNED IN THE PRESENCE OF THE SUBSCRIBING WITNESSES

MANNERS, ET AL. V. MANNERS

72 N. J. Eq. 854, 66 Atl. 583 (1907)

MAGIE, ORDINARY. The appeal is from a decree refusing probate to a paper writing offered as the last will and testament of Elizabeth V. Manners. The paper writing purported to be signed by the testatrix. There was a perfect attestation clause, to which was appended the signatures of two witnesses, and these witnesses were called and testified on the application for probate.

The perfect attestation clause appended to the will was prima facie evidence of due execution. The prima facie effect of such a clause,

however, may be overcome by testimony, and even by the testimony of the subscribing witnesses. Berdan's Case, 65 N. J. Eq. 681, 55 Atl. 728.

The questions presented are (1) whether their testimony overcomes the declaration of the attestat on clause of the will as to publication by the testatrix, and (2) whether their testimony overcomes the attestation clause in respect to the signature of the will

The evidence renders it clear that the signature was not made in the presence of the subscribing witnesses. When they entered the room in which the testatrix sat, they found there the scrivener who had drawn the will and who had requested them to come into the house to witness its execution. Thereupon the scrivener said that the testratrix had made her will and wanted them to witness it The witnesses expressed the opinion that this was spoken in a voice loud enough to be heard by the testatrix, who sat some eight or ten feet distant in the same room, but they both declare that she made no sign of assent, and both agree that she did not sign the paper in their presence.

It is a settled law that a testatrix may publish a will by assenting to a statement made in her presence. Such an assent may be made by some act or sign. If the scrivener declared, in the hearing of the testatrix, that the paper was her will and she had then signed it, publication might be inferred; but, when there was no act or sign by the testatrix, I think that the proof discloses that there was no publication by the testatrix.

As the paper writing was not signed in the presence of witnesses, it is by our statute invalid, unless the testatrix acknowledged "the making thereof;" i.e., the making of the signature in their presence. On this subject the evidence shows that the scrivener said, apparently with reference to the paper writing which was in the room and on the table, "This is her name." Testatrix remained silent, and no act or sign was made by her to that statement.

But, if she had signified her assent to the statement of the scrivener, in my judgment, the acknowledgment which the statute requires would not be made out. An acknowledgment that the signature was her name is not an acknowledgment that it was made by her, and I think nothing less than such an acknowledgment will satisfy the statutory requirements.

In my judgment the decree refusing probate must be affirmed.

A WILL MUST BE WITNESSED IN THE "PRESENCE OF THE

TESTATOR"

RIGGS V. RIGGS

135 Mass. 238 (1883)

MORTON, C. J. The only question presented by this report is as to the sufficiency of the attestation by the witnesses to the will and codicil of the testator.

The statutes provide that, in order to be valid, a will or codicil must be signed by the testator, or by some person in his presence and by his direction, "and attested and subscribed in his presence by three or more competent witnesses." Gen. St. c. 92, §6; Publ. St. c. 127. §1.

It appeared at the hearing that the testator had received a severe injury, and was lying upon his bed unable to move. His sight was unimpaired, but he could only look upward, as he was incapable of turning his head so as to see what took place at his side. As to the codicil, it appeared that it was attested and subscribed by the three witnesses in the same room with the testator, at a table by the side of the bed about four feet from his head. The contestant contends that this attestation was insufficient, because the testator did not and could not see the witnesses subscribe their names. It has been held by some courts, upon the construction of similar statutes, that such an attestation is not sufficient. See Aikin v. Weckerly, 19 Mich. 482, 505; Downie's Will, 42 Wis. 66; Tribe v. Tribe, 13 Jur. 793; Jones v. Tuck, 48 N. C. 202; Graham v. Graham, 32 N. C. 219. But we are of opinion that so nice and narrow a construction is not required by the letter, and would defeat the spirit, of our statute.

It is true that it is stated, in many cases, that witnesses are not in the presence of a testator unless they are within his sight; but these statements are made with reference to testators who can see. As most men can see, vision is the usual and safest test of presence, but it is not the only test. A man may take note of the presence of another by the other senses, as hearing or touch. Certainly, if two blind men are in the same room, talking together, they are in each other's presence. If two men are in the same room, conversing together, and either or both bandage or close their eyes, they do not cease to be in each other's presence.

In England, where the tendency of the courts has been to construe the statute with great strictness, it has always been held that a blind man can make a valid will, although of course he cannot see, if he is sensible of the presence of the witnesses through the other senses. Piercy's Goods, 1 Rob. Ecc. 278; Fincham v. Edwards, 3 Cur. Ecc. 63.