The three persons whose names purport to be subscribed to the instrument in question severally testify that the signatures thereon are not their signatures, and that the deceased not only did not sign the instrument in question in their presence, but that they did not even know that he had left an alleged will until after his decease. No one of these witnesses is related, either by blood or marriage, either to the deceased, to any of his heirs at law, or to any of the legatees or devisees under the will, and each one of them is without pecuniary interest of any kind, whether probate be granted or denied. Their reputation for veracity is not impeached, and two of them testify that they were not at the house in Pawtucket, where it is claimed they acted as witnesses at the time the instrument is supposed to have been executed — one being in Providence, and the other in attendance at the Pawtucket high school, more than a mile distant; the testimony of the latter being confirmed by a reference to the school record, which shows his presence at school on the day in question. No attempt even is made to deny this alibi of these witnesses, but the case for the proponents rests solely on certain admittedly genuine signatures of these witnesses to certain letters and checks which were submitted to the jury without a word of expert testimony as to their similarity or identity with the *Page 356 signatures in question; and the only contrary testimony is that of the brother of the deceased, who is also the principal beneficiary under an instrument purporting to be the last will and testament of a childless testator, more than seventy years of age, who thereby gave his wife only "her dower right in my estate." This witness does not testify that the deceased and the three persons whose names are subscribed as witnesses even met on the day in question, but avers that the deceased told him that he had executed a will and says he saw it (but did not read it), and that the three names were there then as they are there now.
I see no reason to believe that three disinterested witnesses are more liable to be in error, or to swear falsely concerning the genuineness of their own signatures, than one interested witness is to be in error in respect of his testimony and am of the opinion that in this case the testimony so strongly preponderates against the verdict that it should be set aside and a new trial ordered. At such trial further evidence may be offered, on the alibi of the two witnesses above referred to, which may or may not be of assistance in determining the issue presented.
There is a further consideration to which it seems proper to advert. The attestation clause is as follows: "On this twenty-sixth day of October 1905, we three at the request of the above named William E. Newell, in his presence and in the presence of each other hereunto subscribe our names as witnesses." There is no word here which indicates that the instrument so subscribed is a will; neither is it claimed that there is any evidence in the record that the deceased declared the same to be his will or that knowledge of this fact was in any way imparted to, or, indeed, possessed by, any of them. The attestation clause is defective also in that it does not purport to set forth that the signature of the testator was made or acknowledged in the presence of the subscribing witnesses. In other words, if the subscribing witnesses should admit, not only the genuineness of their signatures, but, also, should confirm, by their affirmative testimony, every fact set forth in the attestation clause, there would still remain a failure to *Page 357 prove that the testator either signed in their presence, or, having previously signed, declared the signature to be his in their presence; and that requirement of the statute would rest only on the presumption that, inasmuch as the statutory number of witnesses testified that they signed as witnesses at the request of the testator and in his presence and in the presence of each other, it must follow that the testator on his part had previously made or acknowledged his signature in the presence of all of them and of no number less than all of them. I am not unmindful of the decision of this court in re Christopher Fry'sWill, 2 R.I. 88, but in that case all the witnesses were dead, and here there is the testimony of three witnesses against the presumption.
In re Will of Cottrell, 95 N.Y. 329, supra, the facts are not dissimilar to those in the case at bar; but there are three observations to be made on that case. First, that the court there expressly says in the opinion that by a recent statute it was limited to a consideration of questions of law only, expressly stating also that if the verdict had been against the will in that case they would have been powerless to disturb such a verdict on the evidence. Second, though not necessarily controlling, the code of New York expressly provided for the method of proceeding when the subscribing witnesses should either forget or deny the fact of signature; and lastly, that in that case the attestation clause completely set forth all the requirements of the statute of New York concerning the execution of a will. In this case no witness pretended to say whether the deceased signed at his brother's house or at the newspaper store which he immediately entered after the interview with the attorney who prepared the instrument, and then later acknowledged his signature at the residence of the three persons whose names are subscribed as witnesses, or whether he signed the same at such residence. From beginning to end of this record there is not a word to indicate the time or place of the actual signature of this instrument by the deceased, and the presumption is no greater in favor of any one of these three places and two methods of execution than in favor of any other of them. Yet in two of these places it is not claimed that the *Page 358 witnesses were present, and the validity of the instrument is thus dependent upon several presumptions, each of which is negatived by the testimony of three witnesses, viz.: the presumption that the deceased signed (for no person claims to have seen him sign), and the further presumption that he subsequently declared his signature in the presence of all three and not of any one only, or of any two only, of the three — thus adding one presumption upon another.
The facts undoubtedly present a most unusual and extraordinary case, but upon this record I am of the opinion that the burden of proving the due and solemn execution of this instrument which the law wisely casts upon the proponents has not been sustained, and that there should be a new trial.