the testator neither signs nor acknowledges his signature in the presence of the witnesses the will is void.*

Sec. 977. SAME SUBJECT-WHAT IS A SUFFICIENT ACKNOWLEDGMENT.-The form of the acknowledgment is not particular, no formal or exact words being required; it is sufficient if the testator reads the attestation clause in the presence of the witnesses or exhibits the instrument with his signature thereon and refers to it as his will, or even without referring to it as his will, if he produces it and requests the witnesses to sign, his signature being visible to them.† In some States it is held, that the acknowledgment of his signature by the testator is not sufficient unless the signature is actually visible to the witnesses at the time of the acknowledgment. But the general rule supported by the weight of authority is, that if the testator has actually signed the will, his subsequent acknowledgment of the will as his to the witnesses, is

*Keyl v. Feuchter, 56 O. S. 424; Simmons v. Leonard, 91 Tenn. 183; Haynes v. Haynes, 33 O. S. 598.

Allison v. Allison, 46 Ill. 61; Smith v. Holden, 58 Kan. 535; Turner v. Cook, 36 Ind. 129; Allen v. Griffin, 69 Wis. 529. So where the signature of the testator has been written by another person duly authorized by testator, this fact need not be explained to the subscribing witnesses, an acknowledgment of such signature by the testator is sufficient. Haynes v. Haynes, 33 O. S. 598.

Matter of Mackay's Will, 110 N. Y. 611, 1 L. R. A. 491; Stewart v. Stewart, 56 N. J. Eq. 761. The New York rule is quite strict that the witnesses must see the testator sign or see his signature at the time of the acknowledgment.

sufficient though they do not see the signature, and he does not acknowledge it to them.*

While no express form of acknowledgment is required, it is indispensable to the validity of a will, that such acknowledgment amounts to a verification of the will as authentic. In some States the form of the statute requires that the testator shall declare to the witnesses that the instrument is his will, and in such States a failure to so declare will defeat the will.

No particular form of declaration is required, and it may be made by a third person, as an attorney, in the presence of the testator and with his assent. But to satisfy the statute the testator must in some manner, inform the witnesses, that the instrument is his will and that he intends to give effect to it as such.†

In most of the States it is not essential, that the witnesses should know, either the contents of the instrument or that the instrument is a will.‡

*Dewey v. Dewey, 1 Met. (Mass.) 349, 35 Am. Dec. 367; Simmons v. Leonard, 91 Tenn. 183, 30 Am. S. Rep. 875; Flood v. Pragoff, 79 Ky. 607; Allison v. Allison, 46 Ill. 61; Turner v. Cook, 36 Ind. 129. Professor Page (Wills, Sec. 206) says that the weight of authority under the Modern Wills Acts is that an acknowledgment by a testator is not sufficient unless the witnesses have an opportunity of seeing his signature.

Harp v. Parr, 168 Ill. 459; Keyl v. Feuchter, 56 O. S. 424; Grimm v. Tittman, 113 Mo. 56; Radebaugh v. Shelly, 6 O. S. 307.

Bond v. Seawell, 3 Bur. 1773; Moodie v. Read, 7 Taunt. 361; Barnewall v. Murrell, 108 Ala. 366; Canada's App., 47 Conn. 450; In re Porter's Will, 20 D. C. 493. This may be

Sec. 978. SAME SUBJECT-WHERE, WHEN AND HOW THE WITNESSES SHOULD SIGN.-In England and some of the States the statutes require that the witnesses shall sign in the presence of the testator and in the presence of each other. But this last provision as to signing in the presence of each other is not a general one, and in most States the witnesses may sign at different times and places if each signs in the presence of the testator, and signs the same instrument without its having been altered.*

The statutes in some States expressly require that the testator shall request the witnesses to sign. This is not a common requirement, and where in force is usually satisfied by an implied request to sign from the testator. But the witnesses must sign with the knowledge and consent or acquiescence of testator.†

A witness may sign his name in full, or in part, or by his initials. He may sign by mark, or his name may be written for him by some other person in his pres

come necessary by express statutory provision requiring a publication of the will as in New York and New Jersey. In Keyl v. Feuchter, 56 O. S. 424, by an obiter dictum it appears that the testator should acknowledge the instrument as his will, but this is not so decided by the facts in the case, and the rule in Ohio is perhaps different. See Page on Wills, Sec. 227; Williamson's Will, 6 Ohio N. P. 79.

*Grayson v. Atkinson, 2 Ves. 454; Moore v. Spie, 80 Ala. 129; Lane's App., 57 Conn. 182, 4 L. R. A. 45; Patterson v. Ransom, 55 Ind. 402.

+Mullin's Est., 110 Cal. 252; Payne v. Payne, 54 Ark. 415; Coffin v. Coffin, 23 N. Y. 9.

ence and by his direction.* Although it is sometimes held that since the codes do not provide that the signature of a witness may be written by another person properly authorized so to do, that the signature of a witness so written though in the presence of the testator is insufficient. A witness may also write a description of himself, which, if so intended, will answer for his name. So the witness's hand may be guided by another person, or he may touch the pen with which another writes his name.

Usually the statutes do not require the witnesses to sign at any particular place on the will, and if the required number have signed somewhere on the will with the intention of attesting it, this is sufficient; it being held that "subscribed" has not the same meaning as it has when used in the Statute of Frauds, regarding the signature of a party, where it means to write beneath or at the end of the instrument. All that is necessary under the Wills Act is that the signatures of the witnesses be affixed animo attestandi.‡

In a few States, by statute, the witnesses are required to sign at the end of a will, and this provision must be

*In re Christian, 2 Rob. Ecc. Rep. 110; Jackson v. Van Duzen, 5 Johns. (N. Y.) 144; Garrett v. Heflin, 98 Ala. 615; Gillis v. Gillis, 96 Ga. 1; Schnee v. Schnee (Kan.), 60 Pac. Rep. 738; Lord v. Lord, 58 N. H. 7.

In re White, 7 Jur. 1045; Riley v. Riley, 36 Ala. 496; McFarland v. Bush, 94 Tenn. 538; Horton v. Johnson, 18 Ga. 396. Page on Wills, Sec. 221; Potts v. Felton, 70 Ind. 166; Franks v. Chapman, 64 Tex. 159; contra, Soward v. Soward, 1 Duv. (Ky.) 126.

regarded or the will fails.* In any case the witnesses should sign either upon the same sheet with the testator, or upon some paper physically annexed to that sheet. It is likewise imperative that wherever the witnesses sign, they must do so with the intention, and for the purpose of attesting the will. So if the witnesses' signatures appear to attest certain interlineations and not the will it is insufficient.‡

Sec. 979. SAME

SUBJECT-WHAT

IS

MEANT BY "IN THE PRESENCE OF TESTATOR?"-It is a quite general requirement of the Wills Acts in the various States that the witnesses attesting the execution of a will should sign in the presence of the testator, and so it becomes important to consider what is meant by this. It is to be observed that this term "presence" is used in connection with a testator who has another sign his name for him, also where he is required to sign in the presence of the attesting witnesses, and in the present case, with the same meaning and effect. Professor Page states that the term "presence" involves two ideas: (a) mental cognition of the act, (b) physical contiguity.§ That is, that the testator must be in a position to mentally grasp what is going on, by being conscious and informed of the act in progress,

*Conway's Will, 124 N. Y. 455; Vogel v. Lehritter, 139 N. Y. 238.

Fowler v. Stagner, 55 Tex. 393.

In re Cunningham, 1 S. & S. 132; Boone v. Lewis, 103 N. Car. 40; Peake v. Jenkins, 80 Va. 293.

§Page on Wills, Sec. 209.