By the Court.
Benning J.delivering the opinion.
The first request of the propounder was, “that if the jury believe the testator might have seen the attestation of the will, it is sufficient; it is not necessary that he should actually have seen the attestation. The Court refused to give this charge, but said if the attestation be in the same room this is the law, otherwise it is not.”
*630[I.] We think that the Court ought to have given this request in charge.
It was admitted, that the request was legal, if warranted by the evidence, but it was denied, that it was warranted by the evidence.
The evidence showed, that the testator was out of the room, at the time of the attestation. And his being out of the room, the propounder insists, raised a conclusive presumption, that the attestation was not in his presence; or if the presumption thus raised, was only a prima facie one, then he insists, that there was nothing in the evidence to rebut it, and therefore, that in either case, there was nothing to warrant the request. We agree that the testator’s being out of the room, raised a presumption, that the attestation was not in his presence, but we cannot agree, that that presumption was a conclusive one; several cases have happened in which, the attestation was held good, although the testator was not in the room in which the attestation took place.
This presumption then, was one not conclusive, but subr ject to rebuttal. The propounder insists, that there was no évidence to rebut it.
Whether there were in proof, matters sufficient to rebut and destroy this presumption, we will not say; but we do think, that there were in proof, matters sufficient to raise the question with the jury, whether the presumption was not rebutted and destroyed. And if they were sufficient for this, they constituted evidence enough to warrant the request. It is needless to specify these matters. They are obvious.
There being then sufficient evidence to authorize the request, it was legal.
The request was in writing. And the • new trial Act of 1854, requires a legal request if in writing to be given in its very words, and declares that if it is refused, a new trial must be granted by the Court refusing it, or by this Court on appeal to this -Court.
Wej should have to grant a new trial, therefore, even if it *631were true, that the Court below had charged this request, in other words, as the counsel for the propounder, insist, that it is. And the Judge does, in his written opinion on the motion for a new trial, say, that he told the jury, that the attestation would be sufficient, if it occurred at a place at which, it might be seen by the testator. But he does not say, that he expressly withdrew, or varied, what he had said on refusing the request, which was, that the request was “the law,” “if the attestation is in the same room.”
The second request of the propounder is merely abstract.
His third request is in direct opposition to the statute, which says, that all wills “ shall be attested and subscribed in the presence of the said devisor, by three or four credible witnesses, or else they shall be utterly void and of no effect.” Pr. Dig. 915. This provision is now extended to wills of personalty. Acts of 1851-’2, 104.
His sixth request is so imperfect, that we are not sure what it means.
[2.] His seventh request, we think, was properly refused. The law of Georgia makes a conveyance to a slave, void. Besides, such conveyance by the master, is perhaps, an implied manumission, and the Act of 1818, makes every sort of manumission illegal.
The qualification to his fifth request, is so obviously one required by the Act of ISIS, that the exception to it, was hardly relied on in this Court.
[3.] His tenth request was an improper one, we think. A will made under undue influence, is absolutely void. And the recognition of a void will, does not render the will valid, unless the recognition is of a kind, that it of itself amounts to a will; as that it is in writing and properly attested, &e.
[4.] We are not aware of any law that says, that a trust cannot be proved by circumstantial evidence. It is about the only way, perhaps, in which a secret trust can be proved. *632The Court then, we think, was right, in refusing the propounder’s eleventh request.
The last ground in the motion, is a sweeping one, that “ the Court erred in charging as requested by counsel for caveator.”
The requests of the caveator were pretty much the counterpart of the requests of the propounder, Disposing of the latter, is therefore disposing of them.
It is very doubtful, whether the expression used by the Court, in the presence of the jury, does not bring the case within the Act which forbids the Judge to express or intimate his opinion, in the presence of the jury, as to what has, or has not, been proved. It is certainly safer, that such expressions be not used.
[5.] We think that the Court was right in refusing to dismiss the appeal. The propounder joined issue with the caveators, on the merits. That was an admission, at least prima facie, that the caveators were heirs, and entitled to litigate. And the most that he could ask for after that, would have been to be allowed to amend his joinder, by pleading that the caveators were not heirs. This he did not ask for, but merely moved to dismiss the appeal, because there was no evidence in, that the caveators were heirs. Why should the caveators have brought evidence to a point’ which was not contested, which indeed was conceded by the joinder of issue on the merits.
New trial granted.