The opinion of the court was delivered by
Redfield, J.I. The burden of proof that this instrument is the last will and testament of Jonathan Welch, is upon the proponents. Williams, exr. v. Robinson, 42 Vt. 658.
The defendants denied that said instrument was executed as a will -in accordance with the requirements of the statute. The issue thus made, was, by agreement, tried by the court. And the facts found by the court, on exceptions, are as conclusive as if established by a verdict of a jury. This court sits in error upon matters of law ; and it would be without its province, to canvass the evidence and cai’p at the findings of matters of fact, by the court or jury. The court find that Eggleston (who appears as subscribing witness to the will) did not know that said Welch had signed said paper at all; nor did he know what the paper was that he was signing; or for what purpose he was signing it. Although it is not necessary that the testator should sign the will in the presence of the witnesses; and it would be enough that he declared the instrument, which the witnesses were call,ed to attest, to be his will, or his instrument, which he wished them to attest; yet, we think it necessary that the subscribing witness should know that he was, by affixing his name to the instrument, attesting its execution by the testator. The exceptions state that Eggleston did not know that Welch had signed the instrument at all, nor for what purpose he was signing it. When the attesting witness does not know that ho is thereby attesting the execution of the instrument by the testator, nor any other fact, and has no knowledge that the paper he signed was signed or executed by the testator for any purpose, it could not be-said that there was attestation of the execution of the instrument. *169^ A person, to become an attesting witness, must be aware of the character of the act he is called upon to perform, and must. subscribe his name animo testandi. Ex parte Leroy, 3 Bradf. 227 ; 1 Redf. Wills, 241, § 17.
II. But the exceptions state another fact which renders the instrument invalid as a will. The court say: “ We are not satisfied that he [Darling] signed'it as a witness in the presence of the other signers as witnesses.” The burden of proof being upon the proponent, the court, upon the evidence, are unable to find that the persons whose names appear upon the instrument as subscribing witnesses, did sign and attest it as witnesses in the presence of each other. In other words, the evidence failed to establish what the statute requires in order to impress upon the instrument a testamentary character. It was not therefore the last will and testament of Jonathan Welch.
The court have been hard pressed by the learned counsel, to give a new trial upon the ground that upon the face of the exceptions, it is apparent that the county court committed gross errors in finding and stating the facts as established by the evidence. The exceptions do not attempt to state the evidence upon which the facts are found, and no clue is afforded whereby we could have any satisfactory judgment upon its character or weight.
We may infer that Judge Darling wrote the will, and that a person of his intelligence and good character, with two other witnesses present with him and the testator at the time of the execution and attestation of the instrument purporting to be a will, would have attested it in form, as required by the statute. And perhaps there may be some ground for suspicion that the court were in error as to some of the requirements of the statute. But it would be bad in precedent, and subversive of all usage and the express provisions of the statute, to allow arguments, and grope after probabilities, in matters of fact, when the proofs upon which they are found do not appear upon the record. “ Questions of law, placed on the record, determined by the county court, may pass to the supreme court for final decision.” This court sits in error, upon mere questions of law thus certified by *170the. county court. The facts found and certified by the county court being true, — and it is not the province of.this court to bring them in question, — we find no error in law.
The judgment of the county court is therefore affirmed, and ordered to be certified to the probate court.