Pauline Ruoff's Appeal

The opinion of the court was delivered by

"Woodward, J.

This is an attempt to establish as the will of Chistopher Ruoff a testamentary paper not signed by him at the end thereof, nor by any person in his presence and by his express direction, as required by the 6th section of the Act of 8th April, 1833. The excuse is that he was prevented from signing by the extremity of his last sickness, and so are the proofs, but he was not prevented from requesting some person to sign for him, for all the witnesses say he had his senses and conversed about the will much more than would have been necessary to prefer such a request, yet no one of them pretends that he made such request. It is not the case of a testator prevented by the extremity of his last sickness both from signing and requesting another to sign for him. According to the evidence he could not sign, but could request and did not.

The rule prescribed by the statute is imperative in such a case, and the decisions cited in the argument show that it has not been relaxed by judicial construction. It is decisive against the appellant.

There was no'occasion for an issue. Granting that the application was in due time and form (both of which might be questioned), there was no dispute upon a matter of fact. It was a conclusion of law upon the facts shown by the appellant that she had proved no will, and therefore the court were entirely right in reversing the Register’s decree and refusing an issue.

The decree of the Common Pleas is affirmed.