#### IN RE JOHN COX’S WILL.

Where one of the witnesses to a script, propounded as the last will and testament of the deceased, signed the same before the alleged testator signed it, not in his presence, although it was signed formally by the deceased, and acknowledged as his last will, and witnessed properly by another witness, and handed to the first witness, with a request chat he should become a witness, who declined to do so, with the assent of the deceased, such will is not executed according to the requirements of the act of Assembly.

Issue of *devisavit vel non,*tried before his Honor Judge Bailey, at the Spring Term, 1854, of Currituck Superior Court.

The will was propounded by John Cox, jr., the executor named therein, who gave notice to the next of kin, who came in and made up this issue. One of the subscribing witnesses to the script, propounded as the last will and testament of John-Cox, deceased, testified that he drew the paper writing in question, by a copy which he had, and that this was done at his own house, and that he at the same time wrote the attestation clause; and supposing that the testator desired that he .should become a witness, he subscribed his name as such, under the proper clause of attestation. Afterwards, on the same day, he took the paper over to the testator’s house, and read the same to him, in the presence of the other subscribing witness. After he had finished reading the paper, the testator said he should want him to sign as a witness, when he told him that he had already done so, whereupon the testator said it would not make any difference he supposed, and then signed the paper in the presence of both witnesses, declaring it to be his last will and testament; and, turning to the other witness, requested him to subscribe to the same as a witness ; that the other witness did then subscribe as a witness, in the presence of the testator, while the testator. was, looking on. After the testator had signed the will, he handed it to the witness who had subscribed it out of his presence, and said, “ I acknowledge this to be my will.” The witness took it and kept possession of it for a moment, and then handed it to-*322the other witness, wbo then subscribed it in the presence of the testator. The testator then folded it up, and took possession of it. The other subscribing witness testified that he subscribed the paper in the presence of the testator, and at his request; and both the witnesses testified to the capacity of the testator.

His Honor instructed the jury that the act of Assembly had not been complied with, and that the will had not been duly executed, because one of the subscribing witnesses did not sign in the presence of the testator, but signed it before the testator did, and that they should find that the paper writing propounded was not the last will and testament of the deceased. To which instruction the propounder excepted.

The jury found that the paper writing was not the last will and testament of the deceased. The propounder moved for a rule to show cause why a *venire de novo*should not be awarded for the matter excepted to. Rule discharged, and appeal to this Court.

Mr. *Martin,*for the propounder,

argued as follows:

The paper writing propounded as a will was sufficiently attested in presence of testator.

The object of requiring attestation in presence of the maker is to prevent the fraud of substituting one paper for another. In this case such a fraud could not have been perpetrated.

The testator, after signing the paper writing, called upon the witness, Northern, to subscribe it in his presence as a witness, and was then informed that he had already written his name; the testator adopted his attestation, and so did the witness, by taking it in his hand, and retaining it for some moments, sufficiently long to write-his name. If the witness had crossed a *t*or dotted an *i,*or gone over his name with a dry pen, intending it as a re-attestation, it would have been sufficient. What he did do was therefore sufficient, because intended as a re-attestation : both testator and himself adopted it.

The act requires that witnesses should subscribe; yet, it is held, that if they make their marks, it is sufficient. The fraud *323intended to be prevented by the act could much more easily be perpetrated in that case than in this.

This case differs from EagiaND v. HuntiNGDON. In that case the testator was informed, before signing, of the act of witness, and the witness was not called on after the execution of the paper writing. In that case, the witness did nothing after execution, evidencing a re-attestation: in this he did: both he and testator adopted his signature before execution, as an attestation after execution, in presence of testator.

*Smith*and *Heath,*for caveators.

PeaesoN, J.

A good deal can be said on both sides of the question.

On the one hand, while it is admitted that the requirement of the statute had not been *literally*complied with, it is insisted that there has been a *substantial*compliance; that the object for requiring the witnesses to *subscribe in the presence of the testator*was to prevent fraud, and guard against the possibility of having one paper substituted for another ; and that, according to the proof in this c;ise, this object has been fully answered; for the testator took the paper into his hands, so as to know it to be the same, and the witness adopted the signature in his prcsence. They, therefore, “stick in the bark,” and require the idle form of drawing a pen through the name, and that the witness should thereupon *write the name over again.*Gaskill v. King, 12 Ired. 211. The disposition that testators intend to make of their estate, should not be defeated by a construction so rigid.

On the other hand, it is said, t m statue not only intended to prevent fraud, but also to prevent perjury, by requiring an act, as distinguished from mere words, to be done in the presence of the testator. If, under the circumstances presented by this case, the Court can dispense with the *act,*which the statute requires, and take words as a substitute therefor, it will follow, that if the witnesses take the paper into an adjoining room, out of the tes*324tator’s presence, and subscribe it, and then bring it back and hand it to him, so that he knows what has been done, and that it is the very paper, this is a substantial compliance with the requisites of the statute; for, why require the idle form of drawing a pen through the names of the witnesses who have thus subscribed, and that they should *thereupon write their names over again ?*

And then it will follow, that if the witnesses see the testator execute the paper as his will, such proof will be sufficient, although they do not subscribe it as witnesses — for, why require so idle a form, if the execution of the instrument as a will, can be clearly established to the satisfaction of the jury? In this way, one departure from the requirements of the statutes will lead to another, and thus, all the safeguards with which the statute intended to protect men in making their wills, when they are usually weak, and peculiarly exposed to fraud and undue influence, will be removed, piece by piece, and no greater formality will be necessary to make a will, than to make a deed; for, the substance of the thing is, did he execute it as his will, or his deed — if so, all idle forms and ceremonies may be dispensed with!

As to the suggestion, that the disposition that testators intend to make of their estates, should not be defeated by a rigid construction, the reply is — this is *petitio principii.*We cannot know the disposition which a man intended to make of his estate, except from his will, and no paper can be his will, unless it is executed with all the ceremonies required by law.

We are relieved from the necessity of deciding upon the weight of these arguments ; for the question is settled by a decision of this Court upon the very point, Ragland v. Huntingdon, 1 Ired. 563. The witness must, *in fact,*subscribe his name in the presence of the testator. The *act*is necessary. No words will answer the purpose.

The English Courts have put the same construction upon a statute similar to ours. In truth, their decisions go further: if the witness subscribe in the presence of the testator, but does *325so before be executes the instrument, although he afterwards does so in their presence, it is not a compliance with the statute; for, it was not his will when they subscribed. 7 Eng. Eccl. Rep., 341, IN the goods of OldiNG. And although in such case, after the testator has executed it, the witnesses add seals to their names, which had been signed before the paper was executed — it is not a compliance with the statute. Ibid. 391. In the goods-oe Bib».

There is no error. Judgment affirmed.