#### AUSTIN CORNELIUS, propounder, v. WILLIAM CORNELIUS et al.

It was hold not to be error in a Judge to instruct a jury that a testamentary capacity was 11 a capacity to understand the nature of the act, in which the testator was engaged, and its full extents and effects.”

It was hold not to be error in a Judge to say that the law gave peculiar importance to the testimony of the attending physician and the subscribing witnesses.

Where the script was attested by witnesses in the same room with the decedent, about eight feet to one side of him, but in a position to be seen by him in the act of attestation if he turned his head half round, and he was able so to turn his head without pain or inconvenience, it was Ééld to be an attestation in the presence of the decedent.

This was an issue of devisavit vel non, tried before Osborne, J., at the last Spring Term of Catawba Superior Court.

As tliere is no point of law arising on tbe exceptions made on the question, whether there was any evidence as to undue influence and as to the testamentary capacity, it is not deemed expedient to state them at large.

The main question, debated in this Court, was, as to the conformity of the attestation to the requirements of tbe statute. Tiie two subscribing witnesses, Messrs. Little and Ba/rolay, and the attending physician, Dr. Mott, gave substantially the same account of the transaction. The deceased had been badly wounded some two weeks before, and on this day having got worse, he sent for Dr. Mott and the two witnesses, and having had his will written by the former, the witnesses were called upon to witness it; before doing so, one of them examined him as to his knowledge of the contents of the pa*594per, and being satisfied upon that score, the two witnesses went to a table on the left side of the decedent, who was lying on the floor, seven or eight feet from him, a little back of a right line to his position; that they there signed as witnesses, that the decedent, by turning his head half over to one side, could see the witnesses, and even the pen and paper; and that he was able thus to turn his head without pain or inconvenience. The physician added, that he observed that the decedent did once turn his head while the attestation was going on.

The Court instructed the jury “ that there was no evidence of undue influence ; that on the subject of the testator’s mind they would consider the testimony of the subscribing witnesses, and the physician, Ur. Mott; that the law gave peculiar importance to these witnesses; that it was the business of a physician to understand the diseases of the mind as well as the body, and his opinion, for that reason, was entitled to higher consideration than ordinary witnesses ; that the statements of facts attending the making of the will and its execution, would be considered by them, and if they believed, from this proof, that the deceased understood the nature of the act in which he was engaged, in its full extents and effects, then he would have legal capacity, and if they believed that the attestation was made by the subscribing witnesses in the room in which the deceased was lying, and in such a situation as, by turning his head in the manner described by them, he could see the paper-writing at the time 6f the attestation, and that he had the ability to do so, there was an attestation in his presence as required by the act of Assembly.” The caveator’s counsel excepted. Yerdict in favor of the propounder. Appeal by the caveators.

Boy den, MoOorlde, Lander and Avery, for the propounder.

Bynum, for the caveators.

Manly, J.

We have examined the testimony carefully in this case, and concur with the court below, in the conclusion, that there was no evidence of undue influence.

*595The cáse was properly left to the jury, upon the question of capacity. They were charged, that.the capacity necessary was “ to understand the nature of the act in which the testator was engaged, and its full extents and effects;” of this the appellant has no right to complain. It is equally clear, that the special importance attributed by the Judge to the testimony of the attending physician and .the subscribing witnesses, is entirely consonant with law and reason. The subscribing witnesses are required by the law, not only for the purpose of attesting the execution of the instrument as to form and freedom from fraud, but also, especially to see that the testator is' of sound and disposing mind and memory, and is so at the precise point of time to which enquiry is directed, viz: the execution of the will. They are witnesses, therefore, especially to be looked to for information upon every subject connected with the due execution of the instrument. It may be said of the physician, that he is, by the nature of his studies and pursuits, particularly skilled in the mental as well as the physical diseases of men, and with respect to the parties upon whom' he is in constant attendance, he must be supposed, as well from his superior knowledge, as from his better opportunity of observation, to be particularly well informed as to the state of his mind. "What, therefore, the Judge thought proper to say upon the subject of the witnesses mentioned, we do not think liable to any just exception.

The next question is, whether the attesting witnesses have subscribed their names in the presence of the testator, according to the requirements of the statute. Upon this point, the Judge instructed the jury “ that if they believed the attestation was made by the subscribing witnesses in the room in which the deceased was lying, and in such a situation as by turning his head in the manner described by them, he could see the paper-writing at the time of the attestation, and that he had the ability to do so, it was an attestation in the presence of the testator.”

After reviewing the authorities upon this point, we think that 'the strictest interpretation of the law has gone no further than to *596require that the testator should be in a position, and have power, without a removal of his person, to see what was done. It is. not necessary for him, in point of fact, to see. The case of Bynum v. Bynum, 11 Ired. 632, where it appeared that the paper was not in the actual sight of the testatrix, but in two or three feet of her, at the time the witnesses signed, and in the same room, the attestation wás held to be good.— In that case, the Court declares “ that the attestation being done openly, and without any clandestine appearance about it, in the same room with the testatrix, and within two or three feet of her, when she had her senses, and nothing intervened between her and the witnesses, is good under the statute. It was done both literally and substantially, in her presence.”

sphere are authorities going to the extent of holding that the transaction being openly done, there can <be no question of presence where the parties are all in the same room ; Best on presumptions, 83. But, however this may be, it is clear upon authorities, if it be affirmatively established, that the testator might have seen, the attestation is good. Powell on Devises 96. Tod v. The Earl of Winchelsea, 12 Eng. Com. L. Rep. 227.

We are not disturbing, at all, the case of Jones v. TucTc,, 3 Jones 202, to which our attention has been called. In that case, it appeared that the testator could not have turned himself so as to have seen the attesting witnesses subscribe without danger, and acting contrary to the advice of the physician.

In the case before us, the turning of the head would have sufficed to enable the testator to see, and that, according to the testimony, he could do without pain or difficulty. We think the attestation was in the presence of the testator.— The was no error.

Per Curiam,,

Judgment affirmed.