The Curiosities and Law of Wills

by John Proffatt

This must be deemed a satisfactory and equitable decision, and will have a tendency to check the vexatious and expensive litigation so ruinous to heirs and to an estate, whenever contestants think there was a disregard of the slightest technical requisites in the execution of a will.

The fourth and last requirement of the statute in New York is, that there must be two witnesses who shall sign at the end at the request of the testator. In the majority of our States, only two witnesses are required to properly attest a will. There are, as far as we can make out, about ten States that require three witnesses. The New England States require three witnesses, and so do Florida, Georgia, Maryland, South Carolina, and Mississippi, but in the last only one witness is required for a will of personal property.

It is observed that the New York statute does not in terms require the witnesses to sign in the presence of the testator or in the presence of each other, as the most of our States do: as, for instance, California, Connecticut, Georgia, Massachusetts, and many others. The former statute in the State required a signing in the presence of the testator, but these words having been omitted from the Revised Statutes, it has been decided in two adjudicated cases that it is not necessary that the attesting witnesses should sign their names in the presence of the testator in the strict sense of the requirement of the former law.[69] In Ruddon v. McDonald, the testatrix subscribed the will in a small bedroom, and the witnesses signed in an adjoining room. The door between the two rooms was open, but the place where the witnesses signed was in a part of the room where the testatrix could not see the witnesses signing without putting her head down to the foot of the bed, if she could then; and they did not look to be able to say whether they could see her face at the time or not. In such States as require a signing in the presence of the testator these wills would not be entitled to probate. Even in these States, a strict literal compliance is not required; the courts adopt what is termed a doctrine of a constructive presence; which in plain language is just this—if a testator could see, and won’t see, he should see, and must be supposed to have seen. There never were finer distinctions made on any matter in law than just on this point; indeed, they are more nice than wise, and hair-splitting was never carried to a finer point. Thus, where a testator lay in a bed in one room, and the witnesses went through a small passage into another room, and there set their names at a table in the middle of the room, and opposite to the door, and both that and the door of the room where the testator lay were open, so that he might see them subscribe their names if he would, and though there was no positive proof that he did see them subscribe, yet that was sufficient under the statute, because he might have seen them; it shall therefore be considered in his presence.[70] But where the attesting witnesses retired from the room where the testator had signed, and subscribed their names in an adjoining room, and the jury found that from one part of the testator’s room a person, by inclining himself forward, with his head out at the door, might have seen the witnesses, but that the testator was not in that part of the room, it was held that the will was not duly attested.[71] It would almost seem, from these and other decisions, that the validity of the act depended upon the range of the organs of sight of the devisor, or upon the agility of his movements; whether he were able to turn his body to the foot of the bed, or stretch his neck out of the door.

In Georgia, the testator must have been in such a position as to be able to see the witnesses sign, to constitute presence.[72] And where the witnesses did not sign in the same room where the testator was, it raises a presumption that it was not in his presence; but if the jury find that he might have seen it, and knew it was going on, and approved it, it is good.[73]

The whole requirements of the statute are generally embodied in an attestation clause which is signed at the end by witnesses. This is no part of the will, and might be omitted without endangering the will, provided the witnesses, whose names are subscribed, can testify as to the observance of the various requirements; but it is unsafe to trust to the memory of witnesses, and almost always the attestation clause is appended. In those States where no subscribing is required, the following is a good form:

“Signed, sealed, published, and declared, by the said A B, the said testator, as and for his last will and testament, in the presence of us, who, in his sight and presence, and at his request, and in the sight and presence of each other, have subscribed our names as witnesses thereto.”

The following is suited to the requirements of the Revised Statutes of New York:

“Subscribed and acknowledged by the testator, A B, in the presence of each of us, who have subscribed our names as attesting witnesses thereto at the request of the said testator. And the said testator, A B, at the time of making such subscription and acknowledgment, did declare this instrument so subscribed to be his last will and testament.”

A more general form is the following:

“Signed, sealed, published, and declared by the testator, to be his last will and testament, in the presence of us, who, at his request, and in his presence, and in the presence of each other, have subscribed our names as witnesses.”