June, 1830.

#### Thomas Hemphill et al. v. James Hemphill et al.

(-From Burke.

It is not necessary to the valid execution of the will of a blind or illiterate person, that it should be read over to him in the presence of the attesting witnesses.

The fact that a will was not read over to the testator, is evidence to be left to the Jury of his incapacity, or of undue influence, or of fraud. But upon proof of the due execution of a will, the law presumes the testator to have been aware of its contents, and the onus of proving the contrary is thrown upon him who alleges it.

This was an issue of devisavit vel non, as to the will of Thomas Hemphill, senior.

On the trial before his Honor Judge Daisies;, the case was, that the will was in the handwriting of one Logan, who was a subscribing witness, anti who was dead— that the testator was very old and infirm, and had nearly lost his sight. That the other subscribing witness came to the house of the testator on the day that the will was executed, and saw the testator and Logan up stairs, and was asked not to go away, as they would want him presently. That the witness was told the testator was making his will, and he heard Logan’s voice in a low tone, as if he was reading, but could not distinguish the words. That when the witness went up stairs, he was asked by the testator to attest a paper, which was already attested by Logan. It was not read over in the presence of the witness, neither was he informed by the testator that it was his will ", but the testator simply acknowledged his signature, and asked the witness to attest it. The band writing botli of Logan and the testator, and the sanity of the latter, were proved.

It was objected, in the Court below, that the will was not properly proved, because the mental weakness of the supposed testator, and his loss of sight, had disabled him. from knowing whether the writing was his will, or not, and having to depend upon the witness for that Ipiow-*292]Pf]gft, j,e should be able to swear that (lie paper was read to the supposed testator, and also that it was truly and 1 fairly read.

The presiding Judge instructed the Jury, that the law did not require proof that the will was read to the testator in the presence of the witnesses — that if the testator acknowledged the paper to be his will, and was in his senses, and the will was subscribed by the witnesses in his presence and at his request — in law it was properly executed. A verdict being returned in the affirmative, the caveators appealed.

Winston, for the appellants,

contended, that the Judge ought to have instructed the Jury, that if the testator was unable to read, at the time of the publication of the instrument, it should have been read, or the purport explained to him ; or that they should be satisfied from positive testimony, that he understood its contents, — He commented upon the act of 1784 ("Rev. c. 204) arid the Case of Longford v. Eyre (1 P. W. 740) as proof of the great solicitude of the Legislature and of the Courts, to guard testators against fraud arid imposition. He distinguished the case of a deed from the present, and argued that in executing a deed, the very nature of the transaction tended to put the grantor on his guard.

Gaston, contra,

cited Longchamp v. Fish (2 New. Rep. 415).

Ruffin, Judge.

The case of Longchamp v. Fish, (2 New. Rep.) is an authority directly in point against the objection in this case. It is not necessary that the will should be. read over in the presence of the subscribing witnesses. The statute requires the attestation of two witnesses to the execution of the will, and so far, they are indispensably requisite. But every other fact may be proved by other witnesses, as well as by them. Even their own attestation, if denied by themselves, may be shown by the testimony of others. So, if reading be necessary, may that be shown also.

*293Another question has been made at the bar here, on which perhaps more can be said. It is, whether the reading of the will must not be proved in some way, supposing the testator to he blind, or that his sight was so decayed, that he could not himself read it. 1 do not know that we are at liberty to enter into that; both because there is a legal presumption, that the will was read to him; and because the point was not made below. It is clear, that if both subscribing witnesses were dead, the will would be well proved by proof of the handwriting of them and the testator. For after that event, the law takes every thing to have been duly done. Now altho’ one be living, and says tiiat it was not read in his presence, yet if it appear, that the one who is dead wrote the will; was alone with the testator just before the paper was signed ; that the testator was in his right mind, and that the draughtsman likew ise witnessed it, the legal presumption from these facts is, that it was read to the testator, before he signed it. Since Logan might have read it, since it was his duty to do it, since, in all human probability, no testator in his senses would fail to require, it to be read, the inference, from the experience of human conduct, is almost irresistible, that he did read it. As to a true reading, there can he no doubt. Fraud is never imputed without a motive, and evidence to show it. In this light the subject seems to have been viewred by the Counsel and the Court below. For, feeling that there was, in these legal and reasonable presumptions, abundant evidence that Logan had read the will, the cwvea-tors contended, that the will was not duly executed under the statute, because it had not been read in the presence of both subscribing witnesses. This was the point of the objection, and it is in reference to it, that the opinion of the Court was given and must he understood. If therefore the Judge laid down a proposition, which, ast an abstract proposition, may not be .critically correct, but is correct in the particular case, and with reference to the instruction prayed for, it would seem unfair to him *294atu] t0 the successful party before the Jury, to set aside the verdict. It is very different from an objection arising on the record itself; that is to say, the pleadings. They speak tiie same language every where, and contain all the allegations of the parties, and must be sufficient to sustaip the judgment in every Court. But of the viva voce proceedings at the trial, another Court can know only so much as is put down in the party’s exception, or the case stated ; and every thing found by the Jury, or ruled by the Court, ought to be held for right, unless it be complained of at the trial. If if he excepted to, it then distinctly appears ; if it be not, it must be presumed, that the party acquiesced under the conviction, that if he made objection, other par's of the charge or of the evidence would be given, which would remove his objection. (Rowe v. Power, 2 Bos. & Pul. New. Rep. 36). Here it is no part of the exception, that the Judge instructed the Jury, that the will need not be read to the testator. On the contrary, the instruction prayed for seems fo admit, and the Court, on that admission, to assume, that it had been read by ■Logan ; for the caveators contended, that the reading in the presence of one witness was an insufficient execution. But if we are at liberty to scan the charge of the Judge in all its parts, though there might be some doubts, yet 1 believe it is correct, as a general [imposition, that the execution of every written instrument, by every mail, having competent intellectual capacity, is evidence in jaw, that he knew its contents, and binds him. It is true, that Swinburne (vol. 1 ,p. 166) does say, that “ a blind man may make his testament in writing, provided the same be read before witnesses, and in their presence acknowledged by the testator for his will. But if a writing were delivered to the testator, and he, not hearing the same read, acknowledged the same for his will, this would not be sufficient; for it may be, that if he should hear the same read, he would not acknowledge the same for his will.” But this, I apprehend, is only *295a míe of the Chi3 Law, and adopted by Swinburne, as that of the Ecclesiastical Courts. It is certainly prudent and right to read the will, and to read it in the presence of witnesses; because it rebuts the imputation of fraud, of undue influence and incapacity. But the question is, whether it be indispensable, and whether the onus is on him who offers tiie will. I think there is no such rule in the Common Law of England. It is a mere question of fraud; arid the want of proof of the- reading does not destroy the will in the law'. It is clear, tiiat if a deed or other written contract be read falsely to a blind man, or to an illiterate man, even by a stranger, it avoids it. If it be not read, but one undertake to state its contents, and do it falsely, that likewise avoids it. But, says lord Coke, if the party who should deliver tiie deed, doth not require it to be read, he shall be bound by it, tho’ he be blind or illiterate. (Thoroughgood’s case, 2 Rep. 9. Shulter’s case, 12 Rep. 90.) The presumption is indeed, that every instrument is read by or to the maker, before its execution; because men seldom bind themselves by a contract, without taking the precaution, thro’ some friend able to read, and in whom the party has confidence, to have its contents communicated to him. Hence, in good sense, the fact of execution implies a knowledge of what the party is doing. If it be said, with Swinburne, tiiat if it were read, he might not like it, and refuse to acknowledge it — the answer is, that we have no more assurance that it would be truly read, than that it was truly written. And Lord Coke goes so far as to say, in the passage just quoted, that tiie deed is good, not only where it is presumed tiiat it was read, from the contrary not appearing, but that it is good where the contrary, doth actually appear. That it is a strong badge of fraud; an evidence of an overbearing influence over the maker of the deed in some quarter, or of the great imbecility of his mind, when he executes a writing of consequence, without asking for and having it read,, is very certain. And deeds have, under such circumstances, been set aside. *296(Bennet v. Vade, 2 Atk. 326). But at last it is a question of fraud ; and here the whole matter of the testator’s capacity, and of imposition on him, was left to the Jury. j can gre n0 groui,(] f01. distinction between wills and instruments inter vivos, in this particular. That illiterate and blind men are liable to be imposed on, and that they are sometimes imposed on, cannot be dented. But not more so in making wills than other writings. At all events, they are allowed to make contracts and wills, without the law laying down any inflexible rule, that the validity of their acts depends upon its being proved, that they were read to them. The want of such proof is left, with other circumstances, to be weighed by the Jury, wiien fraud is imputed. We know in every day’s experience, that conveyances and bonds of men, who cannot read or write, are enforced uppn the bare proof of execution. So, I think, it is with a will, unless there be some ground laid by other evidence, to suspect imposition.

Per Curiam. Judgment affirmed.