#### GABRIEL JONES, propounder, vs. WILLIAM A. TUCK et al., caveators.

It is not sufficient that the decedent had, by raising himself upon his elbow, the physical ability to see the subscribing witnesses to a script, in the act of attestation, if he could not see them from the position in which he was lying when they did the.act.

Especially is this not the case, if, by thus raising himself, his life would have been endangered.

Issue, deviscmit ml non, tried before his Honor, Judge Saunders, at a Special Term (December, 1855,) of Granville Superior Court.

A script, purporting to be the last will and testament of William Loftis, was offered for probate in the County Court of Granville; by Gabriel Jones, the executor therein named, and opposed by William A. Tuck and Susan Tuck, two of the next of- kin and heirs-at-law of .the decedent; and they having formally entered their caveat, the issue was tried in that Court, and found for the caveators. The propounders appealed to the Superior Court of that county, and upon the trial in that Court, the question which mainly occupies the consideration of this Court was made, as to the sufficiency of the attestation by the subscribing witnesses.

Alfred Apple, one of the subscribing witnesses, testified that he drew the supposed will of William Loftis according to his directions; that he was of sound mind when it was signed; that it was witnessed by himself and the other witnesses; that the attestation was in the adjoining room, and the decedent could not see the witnesses, at the time of their signing as he then lay; that he was lying in bed in such a situation that, by raising himself on his elbow, he might have seen the witnesses and the paper, as they were subscribing their names; that the testator was quite feeble, but from the fact that he saw him turn over in bed, both before and after the act of signing, he thought he had sufficient strength to have raised himself without assistance.

Jane Ohcmdler, another of the subscribing witnesses, and one Jones, both, verified the statement of the other subscribing wit*203ness, Apple. They said, that the decedent could have seen the act of attestation itself, if he had raised himself up on his elbow, and that, though feeble, they thought he could have done so.

For the caveators, the attending physician was introduced, who testified that the decedent was dangerously sick and very feeble; that some days before, in attempting to get out of bed, he had fainted, and witness had advised him not to make any effort of the kind again; he doubted whether the patient had the strength to raise himself to the position which the other witnesses had.said was necessary to have enabled him to see them sign the paper, and if he could, it would have endangered his health and life to have done it.

The Court charged the jury, that “ all the forms for making wills had been complied with in accordance with the statute.” “The law requires that the witnesses should subscribe the paper in the presence of the maker ; that our Supreme Court had held, that such must be the position of the parties, that the testator should have it in his power to see the witnesses sign, and also to see the paper, so as to avoid imposition. The English Judges held that while it was not necessary to prove the testator did see them sign as witnesses, it was necessary to be shown that he might have seen them. Here, if the witnesses Apple and Jones were believed, the testator could not see from his bed without changing* the position in which he was lying; but by raising his head on his elbow, he might have seen the paper, and the witnesses sign; and if, therefore, the jury should believe the testator had the power—the physical ability—to do this, though against the advice of his physician, and imprudent for him to make such an effort, it would be a signing in his presence.”

The counsel for the caveators repeated a request they had before made, for his Honor to charge the jury “ that if they should believe that it was not safe for the testator to have made the effort, and that it would have been dangercras for him to have done so, it was not a sufficient signing.”

This instruction the Court declined to give, and the cavea*204tors excepted as well to the charge given by his Honor, as for his refusal to charge as requested.

Yerdict for the propounders. Judgment and appeal.

Kerr and Winston, Sen., for the propounder.

Moore, for the caveators.

Nash, C, J.

"We do not concur with his Honor, in the instructions he gave as to the attestation of the witnesses’ being in' the presence of the deceased. It was, “ if the witnesses Apple and Jones, were to be believed, the testator could not see from his bed without changing the position in which he was lying, but that by raising his head on his elbow, he might have seen the paper, and the witnesses sign. If, therefore, the jury should believe the testator had the power—the physical ability—to do this, though against the advice of his physician, and imprudent for him to make such an effort, it would be a signing in his presence.”

Before examining the principle laid down by his Honor, it is proper to state a general principle relative to the question before us, and which was not controverted at the bar. If the witnesses to a will attest it in the room where the testator is, it is,, prima fcteie evidence that the testator saw them and the paper, at the time of the attestation, and the burthen of proving that he did not, or could not, see it, is thrown upon the caveators. If it is attested in another room, it is prima facie evidence that he did not, or could not, see the act. In that case the burthen of proof is upon the propounder, that he did see, or might have seen, both the witnesses and the paper. It was also conceded on both sides, that the word presence, as used in the statute, was not confined to “ view” as meaning “ seeing,” but extended to being face to face with the testator, or not at the time absent from him; otherwise, a blind man under the statute, cotild not make a will, which has been decided in many cases, he may do.

The case was elaborately argued, and the authorities, many in number, brought to our notice. We have carefully *205examined them, or such of them as are within our reach, and have come to the conclusion, that the rule as laid down by Powell in his work on Devises, 1 vol. page 98, is the true one. IEs words are, “ but though the signing be in a room or chamber, immediately contiguous to the room where the testator is, yet the devise will be void unless the testator is in a position in which he can, if h,e please, without changing his situation, see the witnesses subscribe.” This position is recognised in Wright v. Manifold, 2 Maule and Selwyn 294, and by Mr. Jarman in his treatise on Wills, vol. 1,, page 77. IEs language is, “ and it was not enough that in another part of the same room, the testator might have perceived the witness, if in his actual position he could not.” Mr., Best, on Presumptions, uses the same language, vol. 31, page 66, L. Lib. “ So, it has been established by several, cases, that where the will has been signed by the witnesses in such a position that the testator might see them, it is to be presumed that he did see them sign it. Hut it is different when the witnesses attest the will in an adjoining room,, under such circumstances, that the testator could not, fromhis. position, see them.” Position and situation, so far as they relate to matter, are indifferently used by lexicographers as synonymous terms, i. e., “ the state of being placed,” “ posturef-r-vide Worcester’s Diet.

The case in^í Maulé & Selwyn is, upon this point a very strong one. There, the testator was in bed in a room, from one part of which, he might, by inclining his head into the passage, have seen the witnesses attest the will, but not in the situation in which he was. This was decided not to be a good attestation. The case of Graham v. Graham, 10 Ire. Rep. 219, is a strong one, confirmatory of the view we are taking of the principle under consideration. There the testator was lying in bed, very sick. After the will was .signed, the witnesses took it into an adjoining room, where it was attested. It was proved that the testator, as he was lying in bed, could, by turning his head, and looking around the side of the door, see the backs of the witnesses as they sat at the chest, writing, hut ho could not see their faces, arms or hands, or the paper *206on which, they wrote. It was decided that the attestation was not in his presence.

If it be true that the law requires the attestation to be in the presence of the testator, to protect him from a fraudulent substitution of another paper for his will, then, it is necessary for him to be in such a situation, that he may see the paper, as well as see the witnesses subscribe their names. The decision is completely within the cases decided both in England and in this country. The bodies of the witnesses as effectually shut out the view of the testator, as the partition-wall did. In the case before us, all the witnesses agree that the testator was, at the time, very ill, and from his then position, he could see neither the attesting witnesses nor the paper. Two of them said, that the bed in which he lay was in such a position, that the testator by raising his head on his elbow, might have seen the paper, and the witnesses subscribe their names. The attendant physician stated that, a day or two before, in attempting to get out of bed, the testator fainted, and he directed him not to make such an attempt again; and if he had strength to raise himself on his elbow, the attempt to do so might have endangered his health and his life. His Honor’s instruction was, that if he had physical ability, and by raising his head upon his elbow, might, from that position, have seen the witnesses and the paper,—•tinjjgh imprudent, and against the opinion of his physician—the attestation was in his presence. The charge conceded that, from tire position in which the testator' lay in his bed, he could see neither the witnesses nor the paper, and that a change of his position was necessary to enable him to do so. This instruction is not in accordance with the cases herein referred to. But his Hon- or went a step further, and throws out of view entirely the opinion of the medical attendant. The law makes no such requisition upon a testator. It does not require him to risk his life to see that the witnesses signed the paper, or to see the paper. If it were required for the testator to alter his position, from a prostrate to a reclining one, where will you stop ? From a reclining to an upright one may be required *207■when that position is necessary to enable the testator to see the attestation, or it may be required of him to get out of bed for that purpose. If mere physical ability to put himself in the position where he may see, be the test, there can be no stopping place.

. In reply to this idea, it was forcibly put: suppose when the witnesses retire to an adjoining room, a ruffian, or some person interested in having the will attested, stands by the sick man’s bed with a bludgeon, and prevents him from altering his position so that he could see, would an attestation under such circumstances be a sufficient one? No, certainly not; and why? because the testator was in fear of -his life. Was not the testator here restrained by the same cause ?

Per Curiam.

Judgment reversed, and a venire de novo awarded.