A will has the effect of rendering inapplicable the laws of succession otherwise applicable to the estate of testator. In order *Page 184 to divert devolution of property from the course ordinarily just, solemnity and technicality must attend the act of making a will. The statute requires attestation in the presence of testator. Herein Thompson, an attesting witness, took the instrument, designated a will, inside his filling station where he was alone and unaccompanied. He placed the instrument on a desk, sat down, and signed the instrument. The testatrix remained outside in the back seat of an automobile stopped in the nearest lane of traffic from where only the head and shoulders of the subscribing witness could have been visible to her. It was impossible for her to have seen the will or the act of attestation.
Under such circumstances it has been held that the witness did not subscribe to the will in testator's presence. Green v. Davis, 228 Ala. 162, 153 So. 240. The testator must have opportunity of seeing the very act of attestation. Walker v. Walker, 342 Ill. 376, 174 N.E. 541. A conclusion merely from the surrounding circumstances is not sufficient, idem, but it is essential to the attestation that the will and the witness be in testator's presence. Snyder v. Steele, 287 Ill. 159, 122 N.E. 520; Poindexter, Adm'r, v. Alexander, 277 Ky. 147,125 S.W.2d 981.
The formalities to be observed in the execution of wills are simple and calculated to prevent fraud and uncertainty. Compliance with statutory requirements in execution of a will is essential to the validity of the testament. An heir may not be deprived of an inheritance except in compliance with technical requirement of law; intention regarding disposition, short of execution, does not suffice. 28 Rawle C. L. 108 § 160; Hill v. Davis, 64 Okla. 253, 167 P. 465, L. R. A. 1918B, 687.
Belmore v. Wiley, 189 Okla. 86, 113 P.2d 817, and In re Jones' Estate, 190 Okla. 123, 121 P.2d 574, are relied upon in the mapority opinion and said to support the substantial compliance rule. The substantial compliance rule stated in these cases regarded testator's request to subscribing witnesses. In that regard, actions speak louder than words, but where execution in testator's presence is at issue, neither words nor intention suffice. The governing decision in this jurisdiction is In re Stover's Estate, 104 Okla. 251,231 P. 212; the rule is that the burden of proof rests upon proponent of a will to establish that the will was executed according to the provisions of the statute. As in Hill v. Davis, supra, "To hold that requirement was complied with in this instance. . . would subvert the purpose and intent of the statute, and would amount to a disregard of its substance". Failure to halt here permits substantial compliance to run wild, so that if in any given instance the intention of the testator is ascertained, his will may be sustained. Application of the rule of substantial compliance to the actual execution of a will is to ignore the statute intended to prevent fraud.
I think the county court correct.