Judges: Lumpkin
Filed Date: 8/15/1858
Status: Precedential
Modified Date: 10/19/2024
By the Court.
delivering the opinion.
The issue in this case is, devisavit vel non. And the only question which we deem it necessary to discuss is, whether the will of John Nobbettwas duly attested under the statute of frauds? The Act of 29 Car. 2, c. 3, requires that the attestation of the witnesses • shall be in the presence of the testator. Was this provision complied with in this case ?
The jury found a verdict in favor of the will, and counsel for the caveators moved the Court to set it aside and direct a new trial, mainly on the ground, that the instruction given
It cannot be denied that the Courts, both in England and in this country, from a disposition to favor wills, have departed, not only from the strict construction, but the obvious meaning, of the statute of frauds ; and the result has been, to open the door to very extensive litigation. Shires vs. Glasscock, 2 Salk. 688; Davy vs. Smith, 3 ibid. 395; Longford vs. Eyre, 1 P. Wms. 740; Casson vs. Dade, 1 Bro. c. c. 99 ; Tod vs. Earl of Winchelsea, 2 Carr & Payne, 488; Broderick vs. Broderick, 1 P. Wms. 239; Doe vs. Manifold, 1 Maule & Selw, 294; 12 Common Law Rep. 227; Right vs. Price, Douglas, 241; Par. on Dev. 90-97; Roberts on Wills, 163—67; Longchamp vs. Fish. 5 Bos. & Pull. 415; Russell vs. Falls, 3 Harr. & McHen. 457 ; Edilen vs. Hardy, 7 Harr. & Johns. 61.
But, notwithstanding Courts of Justice have thus leant strongly in favor of the validity of wills fairly made, and where there is no imputation of fraud, still there is a limit prescribed by positive law, beyond which we cannot go. The witnesses must subscribe in the presence of the testator, in some sense, or else, the statute requiring this to be done, is judicially repealed.
The first case we have upon this subject, is that of Shires vs. Glasscock, reported in 2 Salkel, 688, Carthw. 81, and 1 Equity Cases, abridged, 403. Itwas decided in 3 Jac. 2, about eleven years after the making of the statute, and has ever since been considered a leading case, and is constantly referred to. Let us for a moment examine this case, and compare it with the one before us, and the doctrine contended for in support, of this will.
Sir George Shires, being sick in bed, made his will, and signed it in the presence of three witnesses; but he, being very ill, the witnesses withdrew into a gallery, seven yards distant, between which and the chamber where the testator lay, there was a lobby, with glass doors, and the glass broken in
This, now, is the case, and the judgment of the Court upon it. But in pronouncing the decision, it is added: “ So if the testator being sick, should be in bed and the curtain drawn.” Let it be rembered that this latter point was not before the Court. That it was a bald obiter dictum.
"Well, the next case that came up, is Davy vs. Smith, (3 Salk. 395,) in which the question was, whether the witnesses to a will had pursued the statute of frauds in subscribing their names ; and it was resolved, that where the testator lay in a bed in one room, and the witnesses went through a 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, though there was no positive proof that he did see them subscribe, yet that was a sufficient attestation, within the meaning of the statute, because the testator might have seen them subscribe. And therefore, per Curiam: “If the witnesses subscribe their names in the same room where the testator lies, though the curtains of the bed are drawn close) it is a good subscribing within the statute.”
Here we have the bed-curtain obliter in the previous case, resolved to be law in this, with the word “close” superadded, which is not in the original case, upon a state of facts
Let us hear no more fault finding after this with obiter dicta. Three-fourths of all the law in force in Christendom, as can be demonstrated by reference to the English and American Reports, originated in the obiter dicta of Courts and Judges. And this is no random remark, recklessly made, but attested by an eminent Jurist, now occupying one of the most elevated Judicial positions in the Union.
Well may it be regretted that this doctrine of the constructive presence of the testator was ever carried so far. It has not only, in the language of Chancellor Kent, “ opened the door to very extensive litigation,” but lifted up a flood-gate, through which a torrent is rushing, that threatens to sweep aAvay all the old landmarks of the law, upon the subject of the execution of wills. And where will it stop ? If any change in the position of the testator is required, how much or how little will do ? Can any rule be prescribed ? If the attestation is sufficient, provided it could be seen by the testator, by drawing aside the surrounding curtains, or elevating his head over the screen at his head, or by turning his head, shoulders and body in the bed, why' not, by changing the position of his whole body from the right side to the left, or even getting out of his bed? Nay, why stop at this? If the testator’s situation be such that he cannot see the subscription by the witnesses, by the exertion of his own power and volition, why should it not be sufficient to satisfy the the requisition of the statute, according to this liberal and
Presence, is not defined in the statute. It is obviously not synonimous with being in the same room. A testator may see as accurately what is passing in another room, as if done in the same room. And on the contrary, he may be so situated as not to see what is transacting in the same room where he lies, and thus have a false paper surreptitiously executed as his will. The object of the law can only be effectuated when the testator is so situated, both as to the will and the witnesses, that he may, if he choose, see both, in the act of attestation. And it is wholly immaterial whether the attestation be in the same room or in a different room. The rule is the same as to both. The will and the witnesses must both be in the presence of the testator. lie ought to be able, without an effort or change of position, to see both. Perhaps, it would be requiring too much to insist that it should be shown, that he did actually see both. Witnesses engaged in the act of subscribing their names, rarely watch to see if the testator at the same time is looking on. But it should appear, in the words of one of the cases, “that he was so present to them, and they to him, as that he might and probably did see the attestation.” This we believe to be the sum and substance of the law, and the current of decisions ; and that to go beyond this, is dangerous and mischievous. It will never do to hold, that because a testator may change his situation, or cause it to be done, or remove any intervening obstruction, (without doing either,) and that thereby he might have seen the attestation, it will suffice.
The will of a blind man is an exceptional case, and one not very well settled. We leave that to be decided when the case occurs.
Why a desire to favor the wills of testators made in ex-tremis, should exist in this State, we do not very well understand. Ordinarily, our statute of distribution makes the
In this case, after the testator signed, the witnesses retired obliquely behind the head of the bed, with a counterpane intervening between them and him. It is not pretended that he did see them attest the will. It is clear that by casting his eyes, as he lay, in any direction, the factum of the attestation was not within the scope of his vision. The probability from the proof is, that he could not have changed his situation, from bodily infirmity and pain. He was certainly not assisted to do so by others. The attestation, therefore, being out of the scope of the testator’s vision, becomes bad, as not being in his presence.
It is complained that after the jury had been charged with the cause, and retired to - their room for consultation, and had been occupied for several hours in the consideration of the case, and the Court had retired for the night, they caused their bailiff, without permission from the Court, or the knowledge of the caveators or their counsel, to bring to their rooms the 18th volume of Georgia Reports, and had H. F. Buchanan, one of their body, to read-the case of Hall vs. Hall, in the hearing of the jury.
We deem it unnecessary to notice the other points in the case. They have been waived in the argument.
Judgment reversed.