Futterlieb v. Wight

Vinje, C. J. The question raised by the appeal is whether the witnesses, or any of them, signed in the presence of the testator as required by sec. 2282, Stats. Were this a' case of first construction of the statute it might well be that the facts bring the attestation within the statute, giving N to the word “presence” the broad liberal meaning that some courts have given it. But our court in an early day in the case of Will of Downie, 42 Wis. 66, decided in 1877, held that the witnesses must subscribe in a place where the testator, if not blind, may, if he so desires, see them sign, and [244] that the statute is not satisfied by the will being brought to the testator after it is subscribed by witnesses in an adjoining room where he cannot see them, though he assents to and approves of the attestation. This rule seems a harsh one, but it is prescribed by the legislature and it must be given the construction that the language naturally requires. An act cannot be said to be done in the presence of another when it is outside of his range of vision and beyond his sense of hearing. Even if the word “presence” is construed to mean within a sphere where the senses of the testator can inform him of the performance of the act, the present case would not come within the statute, for he could neither hear ordinary conversation in the kitchen nor see what was being done on the kitchen table from any point in the bedroom he occupied. It is true the distance from the kitchen table through the wall of the bedroom to the bed was perhaps less than ten feet, but the solid wall prevented both the senses of hearing and seeing from ascertaining what was being done. Of course a man both deaf and blind may make a valid will, because the statutory test of presence is based upon a normal human being. If it is within his presence then it is equally within the presence of a blind or deaf man or one who is both. When a will for the purpose of attestation is taken to a place where a testator of normal senses, though he desires so to do, cannot by his own act or by the aid of others in moving him either hear what is said or see the execution of the attestation, it must be deemed to be not within his presence. To hold otherwise would be to permit a will to be taken entirely away from the testator for purposes of attestation. It was the purpose of the statute to require the attestation of the witnesses to be in the presence of the testator as the word “presence” is ordinarily used, that is, in a place where the testator can by the use of his senses ascertain what is being done. When the place is beyond the reach of any of his senses it is no longer within his presence. That [245] it need not necessarily be in, the same room is established by the case of Will of Meurer, 44 Wis. 392. The case of Will of Downie, 42 Wis. 66, contains a detailed discussion of the reasons for the rule there announced and no restatement of such reasons will here be made. For a good discussion of the subject by other courts see Riggs v. Riggs, 135 Mass. 238; Cook v. Winchester, 81 Mich. 581, 46 N. W. 106, 8 L. R. A. 822, and note. It is urged that since the attestation clause imports verity and that in the case of the death of the witnesses before probate the presumption that they signed in the presence of the testator would be sufficient to admit the will to probate, it should be admitted under the evidence as it stands. The answer to that is that we must decide the case upon the evidence in the record, and not upon evidence as it might have been had it been impossible to secure the evidence of the witnesses to the will. By the Court. — Judgment affirmed.