(dissenting). The majority opinion announces :
“In our judgment, the rule for a blind testator is the same as that which would be applied to him if he had sight. The execution ol the will now involved complied with the statute.”
With this statement I cannot agree. The statute requires that the will “shall he attested by two or more competent witnesses subscribing their names to the'will in the presence, of the testator.” 1 agree that “the statute would have been satisfied, had she [the testatrix] been able to see”; but, as stated in the majority opinion, “the prime reason for requiring the signatures to be attached in the presence of the testator is that he may have knowledge that the witnesses have actually signed the instrument he intends as his will.” I cannot agree *456that this protection against possible imposition is secured by having the will attested under conditions which would bring the witnesses within the “presence” of the testator if able to see. Not that a more strict requirement would absolutely preclude every possible chance for substitution of some other document, but that it would minimize, so far as practicable, such opportunity.
In Calkins v. Calkins, 216 Ill. 458, 75 N. E. 182, 1 L. R. A. (N. S.) 393, 108 Am. St. Rep. 233, the Supreme Court of Illinois, expressing the meaning of the phrase “in the presence of the testator,” says:
“An attestation is not in the presence of the testator, although the witnesses are in the same room and close to him, if some material obstacle prevents him from knowing of his own knowledge, or perceiving by his senses, the act of attestation.”
“In case of a blind person, his will would be attested in his presence if the act was brought within his personal knowledge through the medium of other senses. But whether a person is blind or can see, an attestation is certainly not in his presence if he has no conscious personal knowledge of the act and is merely told that it has been performed in another room.” Drury v. Connell, 177 Ill. 43, 52 N. E. 368.
In Page on Wills, § 214, it is said:
“(a) It has been held by some authorities that the act, if done so that it would be in the presence of one who could see situated in the place of me blind person, is done in the presence of such person.
“(b) A safer test, and one indorsed by the better line of authorities, is that the act must be done in such proximity to the blind person, that he can by means of his remaining senses know what is being done.”
In Underhill on Wills, § 196, in speaking of the meaning of the word “presence,” it is said:
“In order that a signing shall be in the presence of the testator, in the statutory sense of the word, he must be mentally conscious of what is going on about him. He must have the power to recognize the acts of the witnesses, if not by sight, then by and through the avenue of some other sense.”
In Ray v. Hill, 3 Strob. (S. C.) 297, 49 Am. Dec. 647, in speaking of the capacity of a blind man to make a will, the court says:
“If the witnesses to the will of a blind man attest and subscribe the will within the reach of the testator’s remaining senses, when he is conscious of what they are doing, and may, if he choose, ascertain that they are subscribing the same will that he had signed, the subscribing will be ‘in the presence of the testator.’ ”
The court further says:
“In the case of a blind man, the superintending control, which in other cases is exercised by sight, must be transferred to the other senses; and if they are. or may, at his discretion, be made sensible that the witnesses are subscribing the same will that he had signed, I should think it ought to suffice. * * * According to the evidence, the subscription by the witnesses was within two feet of the testator. Robinson says, ‘I think the testator knew what we were doing when we signed — he might have heard the scratching of the pen.”
It is solely a question as to whether or not the blind person knows what is being done. Not being able to see what is being done, the act must be done in such proximity to the testator that he “can by *457means of his remaining senses” have a knowledge of what is being done. His source of knowledge need not necessarily be his hearing. A person deprived of sight has a certain capacity for “sensing” what is going on about him, not possessed by those who see. In truth, his sense of hearing, so far as movement of the pen upon the paper is concerned, would be of little value in the way of protection. Even if the testator heard the scratching of the pen, it might not, in my judgment, serve the purpose of the statute, because such sound would be the same, whether the witnesses were signing the document read to the testator, or a substituted document. But, if the parties are in close proximity to the testator, it would at least materially minimize the opportunity to substitute some other paper, which is the main purpose of the requirement that it shall be in the presence of the testator. Such substitution could not well be made without some movement which might be clearly discernible — such as the withdrawing of another document from the pocket, or from some other place; the incident of delay might he sxxggestive; the movement of the parties about the table might have some suspicious significance; and if the capacity of the testator to “sense” these things failed to furnish the protection which the statute contemplates, I would go to the extent of holding that a document must be signed upon a table or stand, sufficiently close to the testator, so that he might hold his hand upon the paper during the attestation.
If the statute were construed to require that the testator, after the reading of the document, should place his hand upon some portion of it as it rested upon a table in front of him while his signature was being wi'itten, and while the witnesses attached their signatures, it would in no manner furnish an obstacle to the execution of a will by a person deprived of sight. It would be as easy to execute it in such manner as in the manner shown by the testimony in this case. The only burden it would put upon the parties would he to have the table moved to the testator, or have the testator sit at the table with the witnesses.
I am afraid that the rule of the majority opinion will leave the blind, desiring to execute a will, to the mercy of designing persons, and inasmuch as this establishes a rule of law, not only applicable to this case, but to all other cases, I cannot concur in the majority opinion upon this point. .1 feel that at least it was a question for the jury, under proper instructions as to the purpose of the statute, to determine whether the acts done were such as to enable testatrix to be conscious of such acts in such detail as to furnish her the protection which the law provides.
I concur with the majority in holding that the “direction” that Ford attach the name of the testatrix to her will was proven, but for the foregoing reasons I do not believe that he attached such signature in the “presence” of testatrix.
Assuming (without reference to the facts in this case) that there ■was a conspiracy to substitute a will, there would not be the slightest difficulty in slipping a spurious document from the pocket of any of the parties as they walked from ihe testatrix to the adjoining room. *458The act of such substitution, or any noise incident thereto, would be covered by the movement of the parties across the floor. I think it is fair to assume that the purpose of the statute requiring attestation in the presence of the testator is not only intended to enable the testator to know what is being done, but that it contemplates that such requirement may be a restraint upon those who might be inclined to perpetrate such a fraud. The psychology of the matter must not be overlooked.
I concur in the conclusion of the majority that the plaintiff failed to establish by the testimony that testatrix lacked testamentary capacity.