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Attestation

witnesses, mass, am, wills and dec

ATTESTATION. The act of witnessing an instrument in writing, at the request of the party making the same, and subscribing it as a witness. 3 P. Wins. 254; Shanks v. Chris topher, 3 A. K. Marsh. (Ky.) 146; Hall v. Hall, 17 Pick. (Mass.) 373.

Deeds, at common law, do not require at testation; 2 Bla. Com. 307 ; 3 Dane, Abr. 354; Thacher v. Phinney, 7 Allen (Mass.) 149; and there are several states where at com mon law it was not necessary ; Ingram v. Hall, 2 N. C. 205; Dole v. Thurlow, 12 Mete. (Mass.) 157. In many of the states there are statutory requirements on the subject, and where such exist they must be strictly complied with. It is generally safe to have two witnesses, one of whom may be and usu ally is the officer taking the ment. See Coit v. Starkweather, 8 Conn. 289, 20 Am. Dec. 110 ; Stone v. Ashley, 13 N. H. 38 ; Shults v. Moore, 1 McLean 520, Fed. Cas. No. 12,824 ; Ross v. Worthington, II Minn. 443 (Gil. 323), 88 Am. Dec. 95; 2 Greenl. Ev. § 275, n.; 4 Kent 457. The requi sites are not the same in all cases as against the grantor and as against purchasers. See French v. French, 3 N. H. 234.

The attesting witness need not see the grantor write his name : if he sign in the presence of the grantor, and at his request, it is sufficient; Jar. Wills 87-91; 2 B. & P. 217.

Wills must usually be attested by compe tent or credible witnesses; 2 Greenl. Ey. § 691; Hawes v. Humphrey, 9 Pick. (Mass.) 350, 20 Am. Dec. 481; 1 Burr. 411; who must subscribe their names attesting in the pres ence of the testator ; Edelen v. Hardey's Les see, 7 Harr. & J. (Md.) 61, 16 Am. Dec. 292;

Neil v. Neil, 1 Leigh (Va.) 6; 1 Manic & S. 294; 2 Curt. Eccl. 320; 3 id. 118 ; 2 Greenl. Ey. § 678; Snider v. Burks, 84 Ala. 53, 4 South. 225; Mays v. Mays, 114 Mo, 536, 21 S. W. 921. And see Nickerson v. Buck, 12 Cush. (Mass.) 342; 1 Ves. Ch. 11; 2 Washb.

R. P. 682; but he need not sign in their pres ence; Stirling v. Stirling, 64 Md. 138, 21 Atl. 273; Simmons v. Leonard, 91 Tenn. 183, 18 S. W. 280, 30 Am. St. Rep. 875. The term "presence" in a statute requiring the sub scription of witnesses to a will to be made in the presence of the testator, means "con scious presence ;" Tucker v. Sandidge, 85 Va. 546, 8 S. E. 650.

In some states three witnesses are requir ed to wills devising lands; in the majority of states curly two. In Pennsylvania no at testing witnesses are required except in wills making gifts to charity, where two credible witnesses, not interested in the charity, are required.

A person may attest a will by making his mark, although the person who writes his name fails to sign his own name as a witness to the mark ; Davis v. Semmes, 51 Ark. 48, 9 S. W. 434. Persons signing as witnesses must do so after the testator has signed the will; Brooks v. Woodson, 87 Ga. 379, 13 S. E. 712, 14 L. R. A. 160. If a will is signed by only two witnesses where three are re quired as to realty, it is inoperative as to the realty but valid as to the personalty ; Hays v. Ernest, 32 Fla. 18, 13 South. 451.