In re the Probate of the last will of Alpaugh

The Oedisaey, The objection to the will in this case being admitted to probate is, that it does not appear by proof that the testator signed it in the presence of the witnesses, or that he acknowledged the signature to be his in their presence. This is required by the statute, Nix. Dig. 1032, § 24, and no other evidence can be allowed to supply the defect. If twenty witnesses saw him sign or heard him acknowledge the signature, it will not supply the requirement of signing or acknowledgment, in the presence of the persons whom he selected as the legal witnesses of this solemn act. In this case the testator drew the whole will, including the attestation clause, -which declares that it was signed in the presence of the [508] witnesses. The witnesses testify that after Mr. Alpaugh’s name wras signed to the will he took it in his hand, declared it to be his last will, and asked them to sign it as witnesses. Neither of them testifies that he saw Alpaugh sign it, or that he acknowledged the signature to be his. Neither of them says that Alpaugh did not sign it in their presence. They were not asked directly whether they saw him sign. Each states such facts as he remembers, and says further that h.e does not recollect all that vras done or said. In such case, as in the- case of the death of the witnesses, the attestation clause must be taken as true, and as proof of signing in their presence. Most especially in this case, where the attestation clause is in the handwriting of the testator, and showrs that he knew the requirements of the lawq the presumption will be that he saw to it that they were complied with. If the attesting witnesses had testified that they did not recollect whether the will was signed in their presence, the effect would be the same. If they had testified positively that the will was not signed in their presence, but wras signed before they came, their evidence would not be overcome by the certificate in the attestation clause, but might be by convincing proof that it was actually signed in their presence.’ In this case the want of recollection, or the w^ant of proof, is remedied by the presumption -arising from the attestation clause, and is sufficient to warrant the determination of the Orphans Court in admitting the will to probate, as signed by the testator in the presence of the attesting witnesses. The decree must be affirmed.