The 'testatrix, a resident of Alabama, went to a hospital in the city of Nashville, Tenn., for the. purpose of having a surgical operation performed. Apprehending that the operation might he fatal, she had a lawyer of that city to prepare the paper, propounded for probate as her last, will and testament, which she signed in his presence and which he subscribed as a witnesu
There appears upon this paper in connection with the word “witness’’ (to the right of it), which word was written by the lawyer who prepared the paper, directly opposite to it, 'one name, and under that name another name. To the left of these, names and on the line immediately below, the name of E. M. Hussey appears. The first two names were those of the two physicians who .were to perform the operation, and were in attendance upon the testatrix, and who are shown to have had knowledge of the preparation of .the will. The third was the name of a physician who was an inmate of the hospital at the elate of the signing of the instrument, and a friend of the testatrix. These three physicians are dead and there was proof of the genuineness of their signature's as well as that of the testatrix. No witness to the paper propounded for probate, except the first, who did not see the. others attest it, saw the testatrix sign it. But this is of no moment, as it is not necessary that the witnesses'should actually see the testatrix sign her name. An acknowledgement, by her to them of her signature to the instrument is sufficient. — 2 Greenleaf on Ev. (16th ed.), 676. On this proof of the'execution of the instrument, the court admitted it in evidence against the objection of the appellant. The point of objection taken is, that there was an entire absence of proof, that two witnesses subscribed their names as witnesses in the presence of the testatrix.
One of the essential requisites to the validity of the instrument as a will, is that it must be attested by at least, two witnesses who must subscribe their names thereto in the presence of the. testator. — Code, § 4263. Unless this requisite -of the statute was complied with, *650the instrument was ineffectual to pass real or personal property. It was not a will at all within the purview of the statute, and -cannot be admitted to probate. Proof of this essential requisite is just as necessary in order to probate the paper as a will as Avas a compliance with the statute necessary to give validity to if. Nor do -sections 4276-4277 of the Code dispense AArith the necessity of making this proof.’
In speaking of -section 4276, this court said in Barnewall v. Murrell, 108 Ala. 381: “The statute was intended to prescribe, and prescribes a definite rule, regulating the -admission of that Avhich may be appropriately -termed -secondary evidence, Avlien the primary evidence of the execution of aaúIIs is not attainable. The proper construction of its AAr-ords, and their real sense-and meaning is, that ’if any one or more of the subscribing Avitne-sses, becau-se of the -events or the' disabilities mentioned, cannot be produced, there may he a resort to the secondary evidence for Avhich it provides, the equivalent-in degree -of the unattainable primary evidence.” And it may be added that the-se two sections are nothing-more than a legislative declaration of the’ common Iuav rule. — 1 Greenle-af on Ev. (16th ed.), § 572.
■The requirement of the -statute that the signature -of the testator must be “attested by at least two witnesses who must -subscribe their names thereto in the presence of the testator,”- so far as the question here involved is concerned, is substantially the same as was the language employed in the English Statute of Frauds, (29 Charles, 2, O.- 3, § 5), from AA'hich it was borrowed, -and ’is identical in language with -many of the statutes of other states.
The question-under consideration has been frequently passed upon by the English and American courts. Where the-attestation clause is ■ complete, reciting the ' facts showing a compliance with all the requirements' -of - the statute, it seems that it has been universally held that the presumption aauII be indulged, upon proof of the genuineness of the handwriting of the testator and of the Avitnes-se-s Avhen dead, that all the requisites of the *651statutes have been complied with, unless the contrary ■appears on the face of the will. — 1 Kedfield on Wills, p. 238 and note; ¡Schouler on Wills, § 347; 29 Am. & Eng. Encyc. Law, p. 199; 1 Underhill on Wills, p. 276, § 201, note 1.
The only evidence of attestation of 'tlie will before uS, appearing on the face of the instrument, is the word “witness'' and the subscription of the names of the witnesses. In other words, there is no recitation that the witnesses subscribed their names in the presence of the testatrix.
The statute does not require the attestation clause. Hence its complete omission would have no effect upon the validity of the will. A fulfilment of the statutory requirements is all that is necessary and this may be proven without any recital of the fact in the will or in an attestation clause attached to it. No particular form of words is essential to constitute an attestation. — 1 Jarman on Wills, *p. 91, top p. 123. And indeed “the word ‘attest’ or ‘witness’ or some similar expression, not fully stating a compliance with all the statutory requirements will answer the purpose.” — 1 Underhill on Wills, p. 275, § 200 and notes.
In Croft v. Pawlet, 2 Strange, 1109, 'the attestation clause was in these words: “Signed, sealed, published and declared as and for his last will, in the presence of us, A. B. and C.” The witnesses were all dead and the genuineness of their signatures was proven. “It was objected, that this was not an execution according to the statute of frauds; and the hands of the witnesses could only stand to the facts they had subscribed to, and signing in the presence1 of the testator was not one.” Thq court, held it was evidence to be left to the jury of a compliance with all circumstance's. The attestation clause was in the same language in Hands v. James, Comyn, 531. The witnesses were dead and there was proof of their signatures. The same objection ivas urged against the sufficiency of the proof of the execution of the will as was in Croft v. Pawlet, supra. The court said: “These witnesses ha An set their names and it must be intended they did it regularly.”
*652In tlie case of John Johnson, 2 Curtios’ Ecclesiastical Rep. 341,. the testator executed his will while in India, which vas attested by two witnesses, but it did not appear upon the face of the paper that the requisites of the act had been complied with. The court assumed that the will was duly executed.
In Trott and Trott v. Skidmore, 2 Swabey & Tristam’s Rep. 12, the will was in the handwriting of the testator and written 1832. The attestation was “Witnesses,” followed by the names, which was 'dated April 11, 1838, and written in different .colored ink. Both the witnesses were dead, and their names were in their respective handwriting. No account was given of the manner in which the will was executed. The 'court said: “The difference of the color of the ink in which the names of the attesting witnesses are written might have been caused by, blotting paper being used to one, and not to the other. At ail events it is too slight a circumstance to found any presumption on; and on the facts as proved, the usual presumption omnia rile esse aoba must prevail.” The principle announced in these cases has been approved and followed by the courts of this country as will be shown by an examination of the following cases: Nickerson v. Buck, 12 Cush. 332; Ela v. Edwards, 16 Gray, 91; Elliott, v. Elliott, 10 Allen, 357; Jackson v. Christman, 4 Wend. 277; Clarke v. Dunnavant, 10 Leigh, 13; Deupree v. Deupree, 45 Ga. 415; Fatheree v. Lawrence, 33 Miss. 585.
The presumption of due execution, however, is not one of law, but of fact which the jury .may indulge.. It is a question, then, for the jury .to determine whether all the requisites .of the statute have been complied with. There was no error in admitting ¡the will in evidence, These principles have been recognized and enforced by this 'court in the case of Arrington v. Arrington, 122 Ala. 510, involving the proof of the execution of a deed.
By agreement of counsel the original will is before us for examination. One of the grounds of content is that it was revoked by the .testatrix by “'tearing the same apart with the intention of revoking it.”
Section 4265 of the Code, provides that “except in the cases provided in the preceding article, a will in *653writing can only be revoked by burning, tearing, cancelling or obliterating the same, with the intention of revoking it, by the testator himself or by some person in his presence,” etc. When the will was written and signed by ' the testatrix ■ it was upon two separate sheets of paper, and' there is no evidence except from the holes near the top and sides of the sheets that they were ever fastened together. And if fastened together there is no evidence that the fastening was done by the testatrix unless it may be inferred from her possession of it. Bo, too, there is no evidence that the sheets were ever separated by lier, if it be inferred that they were 'once attached, except that after her death, when the. will was found in a box in the bottom of her 'trunk, ■carefully folded, and wrapped in a newspaper, around which was pinned a towel, upon which her name' ivas written, the sheets were apart and there were no fastenings"'in the holes. Bo, then, the only evidence'of a detachment or separation of the sheets, if it be conceded that ’they were fastened together by the testatrix, 'is the physical appearance of the paper itself. This attachment of the sheets, it is evident from an inspection of the holes, was by the means of pins — two of them inserted near the top and each side of the sheets.
A revocation, of necessity, implies the existence of a 'valid will — a vacating of an instrument previously executed, effectual as a' will. And its existence is presumed until rebutted by proof of its subsequent revocation. — 2 (freenleaf on Ev., § 680. It is of no consequence that this will was written xipon separate sheets of paper. . And had these sheets remained disconnected, this would not have been an objection to its validity or afforded an inference of its revocation by the testatrix. Barnewall v. Murrell, 108 Ala. 366. Conceding that the pins which constituted the means of fastening tire sheets together were' placed there by the testatrix and removed by her, thereby restoring the. paper to the condition in which it was when signed by her, did this amount to a teariiuj of the mil, within the meaning of the statute? Not a syllable, word, phrase, or sentence of the will was erased, torn or disturbed. Every word as written was preserved. Indeed, the sheets of paper *654upon winch, the uniting was clone, until the exception of the pin holes and the traces made upon them by the ravages of time, were in the same condition when found after the testatrix’s death as when the words of -the will were traced upon them by the pen of the scribe, executed by the testatrix'and subscribed by the witnesses.
In Law v. Law, 83 Ala. 434, it is said: “That*no revocation can be. effected by • mere, word of mouth, or nuncupative declaration, any more than could be done under - the English Statute of Frauds. It requires one or more'of the specific acts mentioned in the statute — a burning, tearing; cancelling or ' obliterating, with the intention- to revoke, or a new will or codicil, properly executed and attested. To what extent an obliteration of the instrument must extend to be- effectually - revocatory,- cannot be stated with any great degree of particularity. The paper must certainly be materially -mutilated, so that, if unexplained by accompanying declarations, an intent to revoke may be. inferred from its appearance, taken in connection with the act itself. As said in Evans’ Appeal, 58 Penn. St. 238, the act done to the will must be one which ‘stamps upon it an intention that it [the paper] shall have no effect,’ — ‘an act done to the paper itself, a mark upon it, evincible of a present intent that it shall not operate as a will.’ ”
Revocation is an act of the mind which must be demonstrated by some outward and visible sign. As said by a learned judge : “All the destroying in the world without intention will not revoke a will, nor all the -intention in the world without destroying: There must be two.”- — Cheese v. Lovejoy, 2 Prob. Div. 251.
It is not the mere manual operation of tearing the instrument which will satisfy the law; the act must accompany the intention of revoking; there must he the act as well as the animus, both must concur in order to constitute a legal revocation.- — Clark v. Scripps. 2 Rob. Ecc. Rep. 563; Reed v. Harris, 6 Ad. & El. 209; *655Clark v. Smith, 34 Barb. 140; Hoitt v. Hoitt, 63 N. H. 475
We are clearly ol! the opinion that the removing of the fastenings by the testatrix was not a tearing of the will within the meaning of the statute. As there was no tearing of-the will, it. is of no consequence - wliat may have been the unexecuted, intention of the testatrix to revoke it.
All declarations of the. testatrix -subsequent, to the making of this -will tending to show that she had revoked it, were clearly incompetent, -no act of revocation having been shown. — Barnewall v. Murrell, supra; Clark v. Smith;, supra; Waterman v-. Whitney, 1 Ker.nan, 157; Hoitt v. Hoitt, supra, and authorities there cited; 2 Greenleaf on Ev., & 690; 1 Redfield on Wills, 543; 29 Am. &.Eng. Encyc. Law, 326.
The seventh ground of contest is that the petitioner is not the executor named in the instrument propounded for probate, neither is lie one of -the devisees or legatees named therein or interested in the estate of the decedent.
It may be and it is doubtless true that only an executor, devisee or legatee named in a will or some person interested in the estate has the authority to have the will proved befoi e the probate court. — Code, § 4272. But upon a contest of a will before the probate court, the grounds of contest are'that the will ivas not duly executed, the unsoundness of mind of the testator, or any other valid objections thereto. — § .4287. The other valid objections must be of the character -as that involves the validity of tin1 instrument itself. The only judgment authorized to bo rendered is one against the validity of the will or -one sustaining its validity. — § 4293. The ground of contest under -consideration presents no such objection. Indeed tli-e will may be valid without any one being named as executor. Nor would the -death of the person named as executor affect its validity. This ground simply puts in issue the right of the proponent to make proof of the will; in other words, his right to propound it for probate. It is in the nature of a plea in abatement, and raised an issue which should have been tried before pleading to *656the merits. By pleading to the merits, either before or at the same time this ground ivas pleaded, the contestant lost his right to insist upon it. He waived his right to insist preliminarily that the proponent was not the executor named in the will. — 1 Encyc. Pl. & Pr. 82; Hurt v. Turk, 15 Ala. 675. The proponent’s motion to strike this ground of contest should have been granted.' — Brown v. Powell, 45 Ala. 149.
Many, of the numerous assignments of error are based upon the ruling-s of the court in admitting and excluding evidence offered in support of and against tire issue raised by this ground, and upon the giving and refusing of .charges requested relative to that issue. So, too, a great many exceptions were reserved by the contestant to the admission of evidence against his objection and to the exclusion of evidence offered by him, upon the question of revocation of the will by the testatrix. However, we will not further consider anv of these matters, as the questions growing out of them will probably not arise upon another trial.
Charge 4, given at the request of proponent, pretermits all reference to the due execution of the will as a ground of contest and was faulty in this respect if in no other.
Charges 5 and 11, given at the instance of proponent, were improper. They tend to take from the jury the question of the due execution of the will, which was a matter exclusively for their determination.
After the verdict of the jury was rendered, the contestant moved the court to omit from the judgment upon the verdict the provisions of the will contained in items 14 and 15, because they were illegal and void for uncertainty and do not constitute a valid charitable trust. It is obvious that this simply involves a construction of those clauses, and was entirely foreign to the proceeding in which the court was required to enter judgment upon the verdict of the jury. The court was without jurisdiction to entertain the motion.
With the seventh ground of contest eliminated by striking it, as the 'court before entering upon another trial should do, and there being no revocation of the will shown, nor any evidence tending in the remotest *657degree to show mental incapacity to make it or undue influence exercised in > procuring its execution, the issue is narrowed to the single one, of due execution. And this the proponent is entitled to have the jury determine upon making proof of the genuineness of the signature of the testatrix and of the signatures of two of the subscribing witnesses.
For the errors pointed out the judgment must he reversed and the cause remanded.