Gaylor's Appeal from Probate

Carpenter, J. The question before the jury was, whether a paper purporting to be the last will and testament of Louis Gaylor was duly attested. The appellant claimed that it was not, for the reason that it did not appear that the attesting witnesses subscribed their names thereto in the presence of each other. The statute, which was in force when the will was executed, is as follows:—“All wills shall be in writing, [84] subscribed by the testator, and attested by three witnesses, all of them subscribing in his presence.” Gen. Statutes, Rev. 18G6, p. 402. On the trial the appellant offered to prove by William 5. Seeley, Esq., an attorney and counsellor at law, the practice and usage regarding the execution of wills, with respect to the witnesses thereto signing the same in the presence of each other, for the purpose of showing what the law is. But the court rejected the testimony. The evidence was offered as bearing upon a question of law, and not upon any question of fact which the jury were to pass upon. The construction of the statute was a matter for the court and not for the jury. In construing the statute the judge might, had he chosen to do so, have called to his aid the wisdom and experience of eminent counsel, but he was not bound to do it, and his refusal to do so is not erroneous. The court, contrary to the request of the appellant, instructed the jury that the subscribing witnesses need not subscribe their names to the will in the presence of each other. In 1719 the Colonial Legislature enacted as follows: “ That no wills or testaments, bearing date at any time after the first day of January next ensuing the end of the present session of this Assembly, wherein there shall be any devise or devises of real estate, shall be held good and allowed for any such devise or devises, if they are not witnessed by three witnesses, all of them signing in the presence of the testator.” Colonial Records, Vol. 6, p. 148. The law as thus enacted continued, with some verbal changes, not affecting the sense, until the revision of 1875. In 1848 the same formality was required in wills of personal estate. We do not find that the question now before us was ever made before. The form of the attestation clause as given in Niles’s Civil Officer requires the witnesses to subscribe their names in the presence of each other. For this reason doubtless the practice became quite common to have all the witnesses present and subscribe their names at the same time. The question now [85] squarely presented is, whether the statute makes this an essential requisite to the validity of a will. Judge Swift, (1 Swift’s Dig., 186,) lays down this doctrine: “It is not necessary that the witnesses should all attest the will at the same time, in the presence of the testator, and in the presence of each other, though this is the usual and preferable mode; but he may acknowledge the signature to them separately, and their attestation will be good.” Prior to 1837 the law was regarded as well settled in England that the witnesses need not subscribe in the presence of each other. In that year an act of Parliament declares that every will shall be signed at the foot thereof, &c., and that “ such signature shall be made or acknowledged in the presence of two or more witnesses, present at the same time, and such witnesses shall subscribe the will in the presence of the testator.” Under this act it has been held that the witnesses must sign their names in each other’s presence. In New York the statute requires that the “subscription shall be made by the testator in the presence of each of the attesting witnesses, or shall be acknowledged by him to have been so made to each of the attesting witnesses.” Under this statute it has been held sufficient that each witness subscribe in the presence, and at the request of the testator, but severally and apart as respects each other. Hoysradt et al. v. Kingman et al., 22 N. York, 372. In Massachusetts the statute required that a will should be “attested and subscribed in the presence of the testator by three or more competent witnesses.” It was held not necessary that the attesting witnesses should subscribe the will in the presence of each other. Dewey v. Dewey, 1 Met., 349. In view of these authorities we think the charge of the court below was correct. The language of our statute existing when this will was made is explicit and entirely free from ambiguity. It only requires that all the witnesses shall subscribe their names in the presence of the testator. It would give to it a strained and unnatural interpretation to extend it so as to require them all to sign in the presence of each other. In the revision of 1875 we find, in addition to the statute [86] as it previously existed, this clause inserted, “and in the presence of each other.” But that cannot affect the validity of any will previously executed. . A new trial must be denied. In this opinion the other judges concurred.