Written matter, following the signature to a will, will not invalidate it, if such matter be not testamentary in character ; In re Beaumont's Estate, 216 Pa. 350, 65 At]. 799, 9 Ann. Cas. 42.
It was held not necessary under the stat ute of frauds that the witnesses should sub scribe in the' presence of each other. They might attest the execution at different times ; 1 Ves. Ch. 12; 1 Will. Ex. 79.
The term "presence" in a statute requir ing the subscription of witnesses to a will, to be made in the presence of a testator, means "conscious presence" ; Tucker v. San didge, 85 Va. 546, 8 S. E. 650.
A will invalid in New York for lack of sub scribing witnesses is valid in Pennsylvania if the testator subsequently changed his domi cile to Pennsylvania ; In re Beaumont's Es tate, 216 Pa. 350, 65 Atl. 799, 9 Ann. Cas. 42.
The presence of the witness may be actual or constructive ; 1 Brown C. C. 98 ; and the effort of the courts is to support the will as against a technicality ; 1 Dougl. 243. At testa,tion in another room out of the rays of testator's vision is not in his presence ; Calk ins v. Calkins, 216 Ill. 458, 75 N. E. 182, 108 Am. St. Rep. 233, 1 L. R. A. (N. S.) 393, and note; but where it was in another room, but might have been seen, it was sufficient ; Ray mond v. Wagner, 178 Mass. 315, 59 N. E. 811; Baldwin v. Baldwin's Ex'r, 81 Va. 405, 59 Am. Rep. 669 ; but the rule is not complied with when the signing is done elsewhere and subsequently acknowledged in his presence ; Mendell v. Dunbar, 169 Mass. 74, 47 N. E. 402, 61 Am. St. Rep. 277; In re Downie's Will, 42 Wis. 66; when in the same room out of the testator's sight,. it was not sufficient; Beall v. Drane, 25 Ga. 441 ; or in an adjoining room, out of his sight ; Mandeville v. Parker, 31 N. J. Eq. 242.
The witness may have had no other pre vious acquaintance with testator ; Barbour v. Moore, 10 App. D. C. 30 ; In re Lee's Es tate, 5 Pa. Co. Ct. R. 396; Marx v. McGlynn, 88 N. Y. 357 ; dictum, contra, Brinckerhoof v. Remsen, 8 Paige Ch. (N. Y.) 488; except the latter's statement that he was such person and signed and acknowledged the will as such ; Harris v. Martin, 150 N. C. 367, 64' S.
E. 126, 17 Aun. Cas. 685, 21 L. R. A. (N. S.) 531, and note. The identity may De otherwise established ; Mowry v. Silber, 2 Bradf. Sur. (N. Y.) 133.
Testimony of a subscribing witness that testator was not in condition to make a will, does not impair the effect of his attestation,1 and a will may be established in opposition to the testimony of the subscribing witnesses In re Shapter's Will, 35 Colo. 578, 85 Pac. 688, 6 L. R. A. (N. S.) 575, 117 Am. St. Rep. 216 ; such testimony is generally received with great caution ; In re Robinson's Will, 190 Ill. 95, 60 N. E. 194; Lamberts v. Cooper, 25 Gratt. (Va.) 61; Hoerth v. Zable, 92 Ky. 203, 17 S. W. 360 ; In re Nelson's Estate, 132 Cal. 182, 64 Pac. 294 ; Gwin V. Gwin, 5 Idaho 271, 48 Pac. 295; on the ground that their act and their subsequent testimony are in consistent ; Southworth v. Southworth, 173 Mo. 59, 73 S. W. 129 ; McMeekin v. McMeekin, 2 Bush (Ky.) 79.
The attestation clause is not necessary to make a will valid ; Mead v. 'Presbyterian Church, 229 III. 526, 82 N. E. 371, 14 L. R. A. (N. S.) 255, 11 Ann. Cas. 426.
Where three witnesses were required, and two signed and a notarial acknowledgment signed by the notary was surplusage, the no tary's signature was held equivalent to a third witness; Keely v. Moore, 196 U. S. 38, 25 Sup. Ct. 169, 49 L. Ed. 376.
Where a statute provided that the will must be attested by credible witnesses, it was held that the executors were not such, but that they might be compelled to testify and barred from acting as executors ; Jones v. Grieser, 238 Ill. 183, 87 N. E. 295, 15 Ann. Cas. 787; contra, Stewart v. Harriman, 56 N. H. 25, 22 Am. Rep. 408; and this is said to be in accordance with the weight of au thority that an executor is not beneficially in terested and is therefore competent ; 22 Harv. L. Rev. 616.
Where a statute declared void devises and legacies to subscribing witnesses, the devise was valid and the witnesses were competent where a will leaving all of testator's property to a charitable corporation was witnessed by two members of the corporation ; Will v.