her act and deed, and that the same was her will, this is a sufficient subscribing under the statute." Which the court refused to give. The jury found against the validity of the will, and the defendants brought the case here on exceptions to the instructions of the court. 1. The court, in giving the first and fourth instructions, moved by the petitioners, and in refusing the instruction asked by the defendants, ruled directly contrary to the decision of this court In the Matter of the Will of Cornelius, 14 Ark. 675, where it was held, that where the testator's name was written to the will by another person, and he made his mark, it was a valid subscription within the meaning of the statute. The counsel for the petitioners have asked us to review the opinion in that case, criticising, with much ingenuity, the words of the statute, to show that the opinion is not well founded. But the decision is supported by adjudications upon statutes similar to ours, and by the standard text books, and we think it should not be disturbed. 2. In the 2d instruction moved by the petitioners, the court told the jury, in effect, that notwithstanding the will was executed in accordance with the formalities prescribed by the statute, yet it being shown that the testatrix could not read, the will was invalid, unless it was proven that it was read to her, and that she was informed as to its contents. Is this the law? In Harris vs. Brown, 3 Wash. C. C. 584, where the will was impeached for want of testamentary capacity, and for fraud and circumvention produced upon the testator by the person who drew the will, Mr. Justice WASHINGTON said: "A third objection was made by one of the defendant's counsel, which was, that the will is not proved to have been read over to the testator, in the presence of the witnesses. We understand this to be made as a substantive objection to the will, although it was not so argued by the other counsel on the same side who very properly considered it merely as a badge of fraud, that it was not proved to have been read. We will, therefore, at once, Guthrie et al. vs. Price et al. [MAY dispose of this point, by observing that it is not necessary, in order to establish a will, that the person claiming under it should prove that it was read over to the testator, in the presence of the attesting or other witnesses. It would be an unwise provision in the law to require this to be done, inasmuch as most men are careful to confine to their own breasts the manner in which they have disposed, or mean to dispose of their property by will. The domestic peace and harmony of the testator's family might be very unhappily jeoparded, if publicity were necessary to be given on such occasions. The law presumes, in general, that the will was read to or by the testa tor. "But if evidence be given that the testator was blind, or from any cause incapable of reading; or if a reasonable ground is laid for believing that it was not read to him, or that there was fraud or imposition of any kind practised upon the testator, it is incumbent on those who would support the will, to meet such proof by evidence, and to satisfy the jury either that the will was read, or that the contents were known by the testator." In Day vs. Day, 2 Green's Ch. Rep. 551, the ORDINARY said: It is admitted, on both sides, that the formal execution of the instrument, so far as regards the signing and publication, is substantially proved. The testator affixed his name in the presence of all the witnesses, and acknowledged the instrument to be his will. The difficulty grows out of the question whether it is sufficiently manifested that the testator understood the contents of the instrument he was signing. In ordinary cases, when a testator is in health, and of ability, it is not necessary to show that the will was read over to him, or that he knew the contents of it. The legal presumption in such cases is always in favor of the will; and he who seeks to impeach it, must show, conclusively, that the testator was imposed on, or that there was some mistake, whereby he was deceived. "In this case, it is without question that the testator did not read the will himself. It was not in his possession, so as to afford him an opportunity; and, if it had been, he was so weak and so low as to be unable to do it. It is also clear, that it was not read to him. It must, then, be shown to the satisfaction of the court, that he was in some other way made acquainted with the contents of the instrument, and approved them. In this case the presumption of law fails: and it becomes the duty of the person offering the will, to show that the contents of the paper were fully made known to the testator. So if the testator is incapable of reading the will, whether the incapacity arise from blindness, or any other cause, the rule is the same, and the burthen of proof is thrown on the person offering the will. 1 Swin. 96." In Clifton vs. Murray, 7 Geo., 565, LUMPKIN, J., said: "This case is narrowed down to a single point: when a testator is blind, or so illiterate as to be unable to read, or write, is it indispensa ble to the validity of his will that it be read over to him, at the time of its execution, in the presence of the subscribing witnesses? Swinburne intimates that it is. * This may be the rule of the civil law; it would seem, however, never to have been adopted as that of the common law, * * * * * * * * It has been expressly held, in many reported cases, that a will need not be read over to a blind testator previously to its execution. * It is, after all, an issue of fraud; and the question as to whether or not the testator had been imposed on, is one fact to be left to the jury. And the circumstance that the will was not read, will be weighed by them in coming to a conclusion. We cannot get our consent, however, to lay it down as an inflexible rule of law, that the validity of the instrument depends, in every case, upon its being proved that it was read in the presence of the witnesses previous to its execution. It would deprive testators of the privilege secured to them, upon sufficient reasons, of secreting the contents of testaments, until after their death, in order to insure their peace." etc. "It was, at one time, contended that the will of a blind testator should be read over to him in the presence of the witnesses, and that the identical will offered for proof should have been read, but the more reasonable doctrine, which may be now considered as established, is, that, if the court of probate is satisfied from the evidence that the testator knew the contents of the will offered either by hearing it read, or by narrating all of its provisions to others—or, if proved in any other manner that he knew its contents, the court will probate the will. Mod. Prob. Wills, 201." In Boyd vs. Cook, 3 Leigh, 32, the will of a blind man was admitted to record upon the ground that it appeared to the court, by satisfactory evidence, that he was acquainted with its contents: although it was not read over to him. 16., 205. In that case CARR, J., said: "In the case of a man who can see, the signing his will in the presence of witnesses, or acknowledging it to them to be his will, as signed, although he be illiterate, is proof that he was acquainted with its contents; but, in the case of a blind man, although the forms of the statute be complied with, the jury, or probate court, will, to rebut any imputation of fraud, require stronger evidence than the mere attestation of the signature," etc. Shanks et al. vs. Christopher, 3 A. K. Marsh., 144, was very similar to the case now before us. Two of the subscribing witnesses deposed that they had, at the request of the testator, attested the instrument in question, by subscribing their names thereto, in his presence; and that at the time of their attestation, he was of sound mind, and acknowledged the instrument to be his will. The name of the testator was signed to the instrument, with the mark of a cross between the christian and surname, and it was admitted that he could neither read nor write, and neither of the subscribing witnesses read, or heard the instrument read to the testator. It appeared that he had manifested some care in the selection of the witnesses to attest his will, that they were of good character, and that the dispo sition made by the will of the testator's property was in accordance with his settled intention, as evidenced by his reiterated declarations, etc., etc. On this state of facts, it was contended that the instrument ought not to be admitted to record as the TERM, 1861.] Guthrie et al. vs. Price et al. will of the testator, because it did not appear to have been read to him, etc. The court said that the will was executed as required by the statute. That the statute did not require the will to be read to the testator. That a testator ought to know the contents of the will, there could be no doubt, for, otherwise, it could not be said to be his will. But the execution of it by the testator, with the solemnities required by the statute, did, of itself, create a presumption of his knowledge of its contents, and that they conform to his intention. It must, therefore, be incumbent upon those who seek to avoid the will, on the ground that it contains a disposition of the testator's estate inconsistent with his intention, or, of which he has no knowledge, to establish the fact by proof aliunde the instrument itself. But so far from there being any proof of such facts in this case, said the court, all the circumstances of the case conduce to evince the contrary. In the case before us, it was proven that the will was executed in the manner prescribed by the statute. It was subscribed at the end, by the testatrix. It was done in the presence of each of the attesting witnesses. The testatrix, at the time of subscribing it (by making her mark) declared the instrument, so subscribed, to be her will. There were at least two attesting witnesses, each of whom signed his name, as a witness, at the end of the will, at the request of the testatrix. She was of sound mind, mature age, etc. Gould's Dig., chapter 180, secs. 1-4. It being proven that the will was executed in accordance with the formalities prescribed by the statute, the burthen of showing that fraud or imposition was practiced upon the testatrix was upon the parties contesting the validity of the will. See Tucker vs. Calvert, 6 Call, 98, Op. Judge Roane. It was proven that she could not read, and it was not shown that the will was read to her at the time it was executed, but it may have been before. She produced the will herself, declared it to be her will, asked the witnesses to attest it as such, signed it by making her mark. She was a woman of good sense, particular about her business transactions, and manifested her usual soundness of mind at the time. It is not shown that she was la |