$79. Evidence of Completion. It may be said that where it is conclusively shown that a will was signed and executed by the maker, and subscribed and attested by witnesses, as prescribed by law, that is, in law, conclusive evidence of the fact that it was completed to the satisfaction of the maker68. $80. Presence. The word "presence" is used three different times in the statute: (1) A person authorized by the testator must sign the will in his presence. (2) When signing the will, the testator must do so in the presence of the attesting witnesses. (3) When subscribing their names as witnesses, they must do so in presence of the testator. 69 There is involved in the conception of "presence" both a mental and physical presentation in that the physical phenomena may be merely within the range of perception or cognition or may be actually within the range of vision. The court said in a case that "the condition and position of the testator when the will is attested, and in reference to the act of signing by the witness, and their locality when signing, must be such that he has knowledge of what is going forward, and is mentally observant of the specific act in progress, and unless he is blind the signing by the witnesses must occur where the testator, as he is circumstanced, 68. Maynard v. Vinton, 60 Mich. 139, 60 Am. Rep. 276, 26 N. W. 401. 69. Aiken V. Weckerly, 19 Mich. 504; Maynard v. Vinton, 60 Mich. 139, 60 Am. Rep. 276, 26 N. W. 401. may see them sign if he chooses to do so. If, in this state of things, some change in the testator's posture is requisite to bring the action of the witnesses within the scope of his vision and such movement is not prevented by his physical infirmity, but is caused by an indisposition or indifference on his part to take usual notice of the proceedings, the act of witnessing it is to be considered as done in his presence. If, however, the testator's ability to see the witnesses subscribe is dependent upon his ability to make the requisite movement, then, if his ailment so operates upon him as to prevent this movement, and on this account he does not see the witness subscribe, the will is not witnessed in his presence." But vision as the exclusive test of presence has been abandoned, for in the definition of the phrase "in the presence of" due regard must be had to the circumstances of each particular case as it is well settled by all the authorities that the statute does not require absolutely that the witnessing must be done in the actual sight of the testator, nor yet within the same room with him. The statutes are substantially met if the attesting witnesses sign within the hearing, knowledge and understanding of the testator, and so near as not to be substantially away from him, they are considered to be in his presence7o. §81. Presence in Cases of Blindness. The authorities have established the rule that if the testator, who is blind, is sufficiently aware of the presence of the subscribing witnesses, by means of his remaining senses, 70. Cook V. Winchester, 81 A. 822. Mich. 581, 46 N. W. 106, 8 L. R. to know what is taking place, the statute is sufficiently complied with, so as to render the execution of the will valid1. §82. Witnesses to Sign in Presence of Each Other. If the statute does not specifically require the signing of the witnesses in presence of each other, they are not bound to do so, but may sign at different times and places 2. §83. Attestation Clause. In conclusion it may be said that all that is requisite to the due execution of a will is the actual signature of the same, written by the testator, or by some one in his presence and by his express direction, and that the will be attested and subscribed in the presence of the testator, by three or more competent witnesses, for the law requires such instruments to be executed and attested with such precautions as will usually guard against fraud73. In speaking of an attesting clause, Prof. Schouler said: "Nevertheless, the use of an attesting clause, with full recitals of the particulars usual in a careful execution, is highly to be commended, both as a guide in pursuing the formalities needful in so solemn a transaction, and for the sake besides of furnishing presumptive testimony that all has been rightly done, when the subscribing witnesses are dead, forgetful, or beyond the reach of process. Nor matters it that the execution, as thus recited, becomes more formal than the local statutes insist upon; for in simple details it is wiser to be too particular than not particular enough. As a statement 71. Reynolds v. Reynolds, 1 Spears (S. Car.) 253. 72. Grayson v. Atkinson, 2 Ves. 454; Willis v. Mott, 36 N. 73. Abbott v. Abbott, 41 Mich. 541, 2 N. W. 810. of facts transpiring at the time when the will was executed, the attestation clause is useful as a memorandum to aid the attesting witnesses themselves in recalling the circumstances at the time of probate; besides indicating that whatever directed the execution understood what formalities were needful and saw them pursued74." §84. Will Defectively Executed. Probate Courts are not empowered to construe wills when presented for probate. Parties in interest may appear when a will is presented for probate and contest it on the ground that it was not properly executed, or was obtained through undue influence, or was forged, or that the testator was incompetent. $85. Acknowledgment. In case of defective execution, subsequent acknowledgment is insufficient7. §86. Publication. In this state no publication of a will is required to give it effect??. §87. Execution of Mystic or Sealed Testaments. It is contemplated in Act 25 of 1883 providing for the antemortem probate of wills that the widow's statutory right to administer or to nominate guardians is preserved, but it 74. Schouler's Wills. 75. Dudley v. Gates, 124 Mich. 440. 76. Maynard v. Vinton, 60 Mich. 139, 60 Am. Rep. 276, 26 77. In re Kennedy's Estate, 159 Mich. 548. is inoperative and void, for the reason that it fails to make provision for notice to the wife of the testator, and an opportunity for her to be heard78. §88. Delegating Power to Appoint Executor. The authority to appoint an executor may be delegated by the testator, for where a clause in a will reads, “I make no selection of an executor of this will, but leave it for the judge of probate who may be acting when this will becomes operative to make an appointment of some suitable person for the purpose," it confers upon the judge of probate the power of making such appointment. 78. Lloyd v. Wayne Circuit Judge, 56 Mich. 236, 56 Am. Rep. 378, 23 N. W. 28. 79. Brown v. Just, 118 Mich. 678, 77 N. W. 263. |