to communicate with his scrivener, and with the witnesses also, by signs. In such cases, it would seem, upon principle, that to a full compliance with the requisites of the statute, requiring a will to be declared, as such, by the testator, in the presence of his witnesses, they giving their attestation to the act, in his presence and in the presence of each other, it would be important that all the witnesses made necessary, should be able to communicate with the testator, and to comprehend his declarations thus made. But we know no case where the subject has been so viewed. 4. But in the case of educated mutes, who are capable of communicating by writing, there would be no such difficulty. And the fact that the testator wrote the will might fairly be regarded as sufficient evidence, prima facie at least, that he made it understandingly. It might still be necessary, in practice, that he should, before the witnesses, make some recognition of the writing as his last will and testament, and intimate his desire to execute it as such, in their presence, by something more unequivocal than mere signs. It would certainly be prudent, and proper, for the witnesses to be assured of these matters, by some written intimation from the testator.3 SECTION VI. DEAF, DUMB, AND BLIND PERSONS. 1. Persons deprived of the sense of sight have always been held capable of executing a will, with proper precautions. 2. The difficulty very greatly increased when there is a defect of sight and hearing. 3. Such persons may execute wills. 4. Care should be exercised not to lay down rules of exclusion too stringent. * Wharton & Stillé, Med. Jurisprudence, 16, sec. 13; Reynolds v. Reynolds, 1 Spears, 256, 257. 5. There can be no question such person may give testimony or execute his will. 6. Rule as declared by the surrogate of New York. n. 4. The rule of the Civil Law more circumspect. 7. Not required by our law that the proof of the testator's knowledge of the contents of his will come from the witnesses to its execution. 8. The rule laid down by Swinburne required will to be read to testator in the presence of witnesses. 9. This rule is relaxed and is in conformity to analogous cases. 10. But there should be clear proof that no imposition was practised. 11. Blindness alone no proof of mental incapacity, but imposes duty of watchfulness. § 7. 1. THERE seems to have been, from the earliest times, special precautions used in the proof of the wills of such persons as were deprived of the sense of sight. They were, by the Civil Law, required to be read over, in the presence of the testator and his witnesses, and approved by him in their presence. And this course is recommended by the English text-writers upon this subject, although not regarded as altogether indispensable by the courts there.! 2. But there can be no question, that persons incapable of reading, whether from defect of sight, or want of instruction, or sickness, or other cause, require that instruments to be executed by them in the presence of witnesses, should be read over, in the presence of the witnesses and of the person executing them, in order to afford the fullest assurance of the execution being understandingly done? And these embarrassments, and the consequent necessity for the use of greater precautions, must be very much increased in those cases, where the testator is de Where a 1 Wms. Exrs. 17, 18; Fincham v. Edwards, 3 Curteis, 63. blind person is able to sign his name, and does so in the presence of the witnesses, in the execution of his will, this being a compliance with the express requirements of the statute, such a will of lands is held sufficient in the commonlaw courts, if it appear that it was understandingly done. Longchamp v. Fish, 5 Bos. & P. 415; In re Piercy, 1 Rob. 278. 21 Wms. Exrs. 18; 4 Burns, Eccl. Law, 60, 61; Barton v. Robbins, 3 Phillim. 445, n. (b); Day v. Day, 2 Green, Ch. 549. prived both of the sense of hearing and of sight, which sometimes occurs. 3. And there can be no question whatever, at the present day, that such a person, having received instruction so as to be able to comprehend the nature of the transaction, will be entirely competent to execute a will. All that is requisite in such cases is, that the proper communication be made from the testator to. the witnesses, so that they may be able to depose, to the act being understandingly done. This is in some sense a matter of special skill, and to its most successful transaction might require the intervention of 'experts, as the primary witnesses of the act. But something short of this may very probably be held, by the courts, to answer the requirements of the law. 4. It is certainly a very essential duty of those, who have the practical administration of the law in their hands, to be watchful, that in laying down general rules for the guidance of parties concerned, it be done with such wisdom and forecast, that past transactions be not thereby rendered void, or future ones impracticable. The rule to be observed in such cases is very analogous to that in regard to giving testimony. In this respect deaf and dumb persons were formerly regarded as idiots. 5. But since the discovery of their susceptibility of extensive culture, nothing more is required, than that the person, offering such a one as a witness, should first establish the fact, that he is capable of comprehending the obligations of an oath.3 And the same holds true as to executing a will by such person. * 1 Greenleaf, Ev. § 366. The witnesses may give testimony, either by signs or by writing, the latter being regarded as the preferable mode, if the witness is able to write. The old presumption of idiocy in regard to deaf and dumb persons seems to have rested upon two grounds: 1. That they were incapable of cultivation or education; 2. That they had no appreciation of religious obligations or duties. Lord Hale, for authority upon this point, refers to the laws of King Alfred, ch. 14: Si quis mutus vel surdus natus sit, ut peccata sua confiteri nequeat, nec inficiari, emendet pater scelera ipsius. 1 Hale, P. C. 34. It was the rule of the Roman Civil Law, that deaf and dumb persons were non compos 6. This question was carefully examined by the surrogate of New York, with the following results: The law does not prohibit deaf, dumb, or blind persons from making a will. Defects of the senses do not incapacitate, if the testator pos mentis, incapable of making wills, or of any civil, responsible act. 1 Beck, Med. Jur. 881, and note. And in Yong v. Sant, Dyer, 56 a, n. 13, it was held, that one who had become deaf, dumb, and blind, by accident, after birth, was to be held non compos mentis. And Blackstone says that a man born deaf, dumb, and blind, is looked upon by the law as in the same state with an idiot. 1 Comm. 304; Co. Litt. 42; Fleta, lib. 6, c. 40. But this has been held a prima facie presumption of the law for many years. Chitt. Med. Jur. 348; Brower v. Fisher, 4 Johns. Ch. 441; Christmas v. Mitchell, 3 Ired. Ch. 535. * Weir v. Fitzgerald, 2 Bradf. Sur. Rep. 42. Blackstone, 2 Com. 497, lays down the rule, that "such persons as are born deaf, blind, and dumb; who, as they have always wanted the common inlets of understanding, are incapable of having animum testandi, and their testaments are therefore void." And by the Roman Civil Law, the same rule is declared surdus, mutus, testamentum facere non possunt. Dig. Lib. xxviii. tit. 1, §§ 6, 7. But it seems to have been allowed where the defect was not congenital. Cod. Lib. vi. tit. 22, § 10. A blind man was allowed to make a nuncupative will by declaring the same before seven witnesses. Cod. Lib. vi. tit. 22, § 8; Inst. Lib. ii. tit. xii. §§ 3, 4; Dig. Lib. xxxvii. But he could not make a will in writing, unless it was read to him, and acknowledged by him to be his will in the presence of the witnesses, ib. This requirement of the Civil Law, which interposed so reasonable a precaution against fraud in the case of testators deprived of sight, has not been made one of the indispensable statutory requirements, either of the English or American law, so far as respects that class of persons, if we except the State of Louisiana. 1 Jarman, ed. 1861, 29; Mitchell v. Thomas, 6 Moore, P. C. C. 137; Ray v. Hill, 3 Strobh. Law, 297; Boyd v. Cook, 3 Leigh, 32; Lewis v. Lewis, 6 Serg. & R. 496; Clifton v. Murray, 7 Georgia, 564; Wampler v. Wampler, 9 Md. 540. Richardson, J., in Reynolds v. Reynolds, 1 Spears, 256, 257, said: "I would not say that it is absolutely impossible (although it is so considered by great writers) that even a blind, and a deaf and dumb man can make a will." A person who is deprived only of the sense of sight does not require, to the valid execution of his will, that it be read to him in the presence of the witnesses. Martin v. Mitchell, 28 Ga. 382. The declarations of a blind man, made after the execution of his will, are competent to show that he knew the contents of the will when he executed it. Harleston v. Corbett, 12 Rich. Law, 604. sesses sufficient mind to perform a valid testamentary act. The statute does not require a will to be read to the testator, in the presence of the witnesses; but it is proper to do so, when the testator is blind, or cannot read. Besides the mere formal proof of execution, which is required in all cases, something more is necessary to establish the validity of a will, when, from the infirmities of the testator, his impaired capacity, or the circumstances attending the transaction, the usual inference cannot be drawn from the formal execution. Additional evidence is required, that his mind accompanied the will, and that he was cognizant of its provisions. This may be established by the subscribing witnesses, or by other proof. 7. It is not required in the proof of wills, executed by blind persons, that the witnesses should be able to prove that the testator was cognizant of the contents of the paper, which he declares to be his will, and desires the witnesses to attest. This has been so ruled in the cases already cited. And the same rule applies to persons deaf and dumb, as well as blind. 8. The rule laid down by Swinburne, in regard to the formalities requisite to the validity of wills made by blind persons, seems altogether reasonable: "He cannot make his testament in writing, unless the same be read before witnesses, and in presence acknowledged by the testator for his last will. And therefore if a writing were delivered to the testator, and he, not hearing the same read, acknowledged the same for his will, this were not sufficient; for it may be, that if he should hear the same, he would not own it.” their 9. But, as we have before seen, this rule has been very much relaxed, both in England and America, and we see no reason for requiring positive evidence of the will being read, to a tes Longchamp v. Fish, 5 Bos. & Pul. 415; Fincham v. Edwards, 3 Curteis, 63; Barton v. Robbins, 3 Phillim. 455; Moore v. Paine, 2 Cas. Temp. Lee, 595. * Pt. 2, § 11, pl. 1, citing a long list of Civil Law and Continental writers to the point. |