In Re the Last Will & Testament of Baldwin

*29 BbowN, J. Our statute (Eevisal, see. 3113), referring to wills of tbe cbaracter'of tbe paper-writing offered for probate, contains a specific requirement tbat tbe will shall be subscribed, in tbe presence of tbe testator, by two witnesses at least. Tbe paper offered by tbe propounders was never signed by witness Covington in tbe presence of Baldwin. It appears tbat Covington wrote a will for Baldwin, and be and Baldwin signed it in tbe presence of eacb other. There is no finding of fact tbat such paper bad any other witness than Covington. It was destroyed after Baldwin’s death. It was not attached in any way to tbe paper offered for probate, and bad no physical connection with it. Tbe fact tbat it is said to be exactly like tbe paper offered, and tbat tbe latter is a copy of tbe former, will not “mend matters.” In tbe absence of any sort of physical connection between tbe two papers, resort cannot be bad to parol proof to show a similarity of contents and tbat they constituted one and tbe same will. Tbe paper offered was written by Covington and signed by him as a witness before the testator signed, and not in his presence. In fact, Covington never saw Baldwin at all after be wrote and attested tbe paper and left it at tbe former’s residence to be executed by him. Not only did Covington not sign in tbe presence of tbe testator, but bis attestation preceded tbe signing of tbe maker of tbe will. Some authorities bold tbat everything required to be done by tbe testator in tbe execution of a will shall precede in point of time tbe subscription by tbe attesting witness, and tbat, if tbe signature of tbe latter precede tbe signing by tbe testator, tbe will is void. Gardner on Wills, p..236. Until tbe testator has signed, there is no will and nothing to attest. There are eminent authorities, however, which bold tbat where tbe signing of tbe testator and of tbe witnesses took place at tbe same time and constituted one transaction, it is immaterial who signed first. Gardner, supra. While this is very rea *30 sonable, it does not help tbe propounders, upon tbe facts as found. Nor does tbe recognized legal presumption that tbe testator signed first, since that is rebutted by tbe admitted facts. The propounders can take no benefit from tbe fact that Covington signed tbe destroyed paper after testator bad signed it, in bis presence and at bis request, although tbe contents of tbe two papers may have been identical. That will not help out the probate of the paper offered, for the reason, as we have observed, that there was no physical connection between tbe two. The authorities all bold that the attestation or subscription by witnesses must be on the same sheet of paper as that which contains tbe testator’s signature, or else upon some paper physically connected with that sheet. Mr. Schuler says: “Attestation or a subscription by witnesses on a paper detached and separated from tbe will and the testator’s signature, nor affixed in his presence to the paper at the time of execution, fails of compliance with the policy of our law. We may assume it to be void, as otherwise a door must be open to fraud and perjury.” Wills, see. 336 (2d Ed.); Goafs Will 46 N. 0., 323. Am. and Eng. Ency. (2d Ed.) says: “An attestation, if not on the same sheet of paper as the signature of the testator, must be on a paper physically connected with that sheet, although no particular mode of fastening the papers together is required.” Yol. XXX, p. 603. The judgment is Affirmed.