181 Ill. 122, 72 Am. St. Rep. 254, 54 N. E. | including the signatures, and showed them 901; Cook v. Winchester, 81 Mich. 581, 8 L. R. A. 822, 46 N. W. 106; Cunningham v. Cunningham, 80 Minn. 180, 51 L. R. A. 642, 81 Am. St. Rep. 256, 83 N. W. 58; Vaughan v. Vaughan, Am. L. Reg. N. S. 735; Maynard v. Vinton, 59 Mich. 148, 60 Am. Rep. 276, 26 N. W. 401; Sturdivant v. Birchett, 10 Gratt. 67; Riggs v. Riggs, 135 Mass. 238, 46 Am. Rep. 464; Redf. Wills, 230; O'Brien v. Galagher, 25 Conn. 229; Parramore v. Taylor, 11 Gratt. 220; Montgomery v. Perkins, 2 Met. (Ky.) 449, 74 Am. Dec. 419; Jones v. Lake, 2 Atk. 177, note; Hall v. Hall, 17 Pick. 373; Pollock v. Glassell, 2 Gratt. 439; Rosser v. Franklin, 6 Gratt. 25, 52 Am. Dec. 97. to him, and he said it was all right. The will, being offered in evidence, was objected to by the appellants on the ground that it was not executed in accordance with the statute, and was not attested in the presence of he testator, or within his sight or view, or within the possible range of his vision. The court overruled the objection, and admitted the will in evidence. The same question was afterwards raised by instructions asked by the appellants and refused, and the court gave instructions at the instance of appelles, stating, in effect, that there was a valid attestation of the will if the jury found the facts to be as testified to by said witnesses. The verdict was that the writing introduced in evi Cartwright, Ch. J., delivered the opinion dence was the last will and testament of of the court: Appellants filed their bill in the circuit court of Kane county to contest the will of Cyrus Calkins, deceased, alleging, among other things, that the will was not executed in conformity with the requirements of the statute, for the reason that the persons signing the will as witnesses did not attest it in the presence of said Cyrus Calkins, but signed it in another room from the one in which he was lying, and out of the range of his vision, where he did not and could not see the act of attestation. F. M. McNair, the executor, and Charles Calkins and Clara Calkins, three of the appellees, by their answer alleged that the will was signed within the range of vision of the testator, and that, after it was signed by the witnesses, it was immediately presented to the testator, and by him read over and acknowledged in the presence of said witnesses who had so signed the same. An issue was formed and submitted to a jury for trial, when the alleged will was presented signed by Cyrus Calkins with his mark, and with the usual attestation clause signed by Phoebe Catlin and Edwin M. Harris. The subscribing witnesses testified that the will was prepared by the witness Harris, and was signed by the testator at 9 or 10 o'clock in the evening; that the testator was lying in bed with a broken hip; that, after affixing his mark to it, he, in response to a question by Dr. McNair, the executor, requested said witnesses to witness it; that they took the will and went into an adjoining room, out of the presence of the testator and outside of the range of his vision, where it was a physical impossibility for him to see them or the will, and sat down by a table and wrote their signatures; that Mr. Harris then took the will and a lamp, and they went back into the room where the testator was; that Mr. Harris then read the will to the testator, Cyrus Calkins, deceased, and, after overruling a motion for a new trial, the court entered a decree in accordance with the verdict. From that decree this appeal was prosecuted. It must be borne in mind that the question, What will constitute a valid will devising property, or a valid attestation of such an instrument? is legislative, and that the only legitimate function of the court is to declare and enforce the law as enacted by the legislature. The office of the court is to interpret the language used by the legis lature where it requires interpretation, but not to annex new provisions or substitute different ones. The statute requires that all wills, testaments, and codicils shall be attested in the presence of the testator or testatrix, by two or more credible witnesses, and if we should attempt to change that provision so as to authorize an attestation out of the presence of the testator or testatrix, either on account of a desire to sustain a particular will, or because we regard a subsequent acknowledgment by the witnesses, or ratification or approval by the testator, just as good and effective as an attestation according to the statute, we should justly be charged with offensive judicial legislation. Our duty is merely to determine whether this will was attested in the presence of the testator; and the evidence was that it was not so attested, but was afterwards read over to the testator, and the signatures of the witnesses were shown to him. Attestation is the act of witnessing the actual execution of an instrument, and subscribing the name of the witness in testimony of the fact. 4 Cyc. Law & Proc. p. 888. In the case of Drury v. Connell, 177 Ill. 43, 52 N. E. 368, it was said that the attestation of a will consists in the subscription of the names of the witnesses to the attestation clause as a dec have determined that such object shall be attained by requiring the attestation of the subscribing witnesses to be in the presence of the testator; and, if that is not done, it is no answer to say that some other method would effect the same object. Numerous methods may be devised by which the testator can be made acquainted with the fact that the witnesses have signed the identical will which he executed, and that there is no fraud or imposition upon him; but, where the legis lature have determined in what manner the object in view shall be accomplished, no other method can be adopted, although laration that the signature of the testa- | to the paper which he has signed and tor was affixed or the will acknowledged acknowledged as his will. The legislature in their presence; and in the case of Sloan v. Sloan, 184 Ill. 579, 56 N. E. 952, the court considered the question whether there is a distinction between the attestation of a will and the subscription of the names of the witnesses. In that case the proponent offered to prove by one who was present that the will was signed by both the witnesses in his presence, and that it was executed and published by the deceased as and for his last will in his presence; but it was said that a different rule had been too long acquiesced in and understood in this state, and that, to render a will valid, it must be subscribed by the attesting witnesses. The supposed distinction, in the opinion of the court it would be just as applied to our statute, was rejected; and it was held that an attesting witness must be a subscribing witness, and that it is not competent to prove a will by a person who was present and witnessed its execution, but did not sign as an attesting witness. That the attestation mentioned in the statute consists in the witnesses subscribing their names is shown by other provisions of our statute. In the case of a deceased, insane, or absent witness, the court may admit proof of the handwriting of such witness, and admit the instrument to probate as though it had been proved by such subscribing witness in his or her proper person. Proof of the handwriting or the subscribing witness in such a case raises the presumption that the witness duly attested the will in the presence of the testator, and believed him to possess testamentary capacity. More v. More, 211 Ill. 268, 71 N. E. 988. It is not indispensable that the witnesses shall sign a formal clause of attestation. The attestation clause may consist of a simple word, such as "witness," "attest," or "test," or there may be no words of attestation at all; and yet the signature of the witness alone constitutes an attestation of every fact necessary to make the will valid. The provisions of the statute as to the signing by the testator and the witnesses are different. He may either sign the will in the presence of the witnesses, or acknowledge that the will is his act and deed; but, as to the witnesses, the only provision is that they shall attest the will in his presence. All the authorities declare that the object of the law is to prevent fraud and imposition upon the testator or the substitution of a surreptitious will; and, to effect that object, it is necessary that the testator shall be able to see and know that the witnesses have affixed their names as effective. To adopt any other rule would open a limitless field as to what would be equivalent to a compliance with the provision of the statute. The authorities have always given to the word "presence" the meaning of conscious presence, so that the act of attestation may be within the actual personal knowledge of the testator; and in Witt v. Gardiner, 158 Ill. 176, 49 Am. St. Rep. 150, 41 N. E. 781, it was stated that the test of presence of the testator is contiguity, with an uninterrupted view between the testator and the subscribing witnesses, as the indispensable element to the physical signing in the testator's presence. It is not necessary that the act of attestation be performed in the same room, if it takes place within the testator's range of vision, where he can see the signing, considering his posi tion and the state of his health at the time. It is still in his presence although he may turn and look away or choose not to look at the act. On the other hand no mere contiguity of the witnesses will constitute presence if the position of the testator is such that he cannot possibly see them sign. 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. The rule so stated was reaffirmed in Drury v. Connell, 177 Ill. 43, 52 N. E. 368. But counsel say that, according to the rule so stated, a blind person would not be able to execute a will. The rule was naturally stated with reference to sight, because nearly all persons can see, and the rule would apply almost universally. the 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, In 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. Neither is there anything in the suggestion that, if a testator were lying on his bed and could only look upward, the witnesses would have to be suspended in the air over his head. Means could be adopted to comply with the law, and the plain meaning of the authorities is that an attestation is in the presence of the testator only when he has personal knowledge that the witnesses are signing their names to his will in accordance with his request. Counsel say that in this case the attestation was within the knowledge and understanding of the testator, meaning by that statement that, from the question asked by the doctor concerning witnessing the will, and the testator's answer, and the taking of the will into the other room, he would naturally conclude that they went there to attest the will, and were attesting it. It is perfectly clear that he could not have been a witness to the attestation, but that his knowledge, as it is called, was merely an inference or conclusion as to what was going on, based on other facts. The question here involved was decided in Mendell v. Dunbar, 169 Mass. 74, 61 Am. St. Rep. 277, 47 N. E. 402, where the testator signed the will in the presence of the subscribing witnesses, and they withdrew to another room in the house and there subscribed it as witnesses. There presence of the testator would be just as effective to prevent fraud, imposition, or substitution of a surreptitious will, we deem it sufficient to say that the legislature has prescribed a particular method which must be followed in order to make a will legal and valid. The court erred in overruling the objecttion to the will and in giving the instructions. The decree is reversed, and the cause remanded. Petition for rehearing overruled October 11, 1905. PENNSYLVANIA SUPREME COURT. RE ESTATE OF CHARLES SIGEL, Deceased. APPEAL OF WILLIAM SCHUDT. (.... Pa. ....) I. Will-gift affected by codicil. cut down by a subsequent codicil, unless the The right of an heir under a clause in a will directing the residue to be divided between testator's heirs is not cut down by a subsequent codicil giving him a specific legacy, "and no more." (October 9, 1905.) PPEAL by exceptant from a decree of was a question whether the fact that the A the Orphans' Court for Warren County witnesses afterwards returned to the testator, and one of them, with the assent of the others, said that they had signed the will, and showed him the signatures, and he assented thereto, was a sufficient compliance with the statute. The question was answered in the negative. The same view of the law was taken in the case of Re Downie, 42 Wis. 66. We have been referred to two cases adopting a contrary view : Cook v. Winchester, 81 Mich. 581, 8 L. R. A. 822, 46 N. W. 106, and Cunning ham v. Cunningham, 80 Minn. 180, 51 L. R. A. 642, 81 Am. St. Rep. 256, 83 N. W. making distribution of a part of the estate of Charles Sigel, deceased. Affirmed. The facts are stated in the opinion. Messrs. Perry D. Clark and Jacob Stern, for appellant: If the phrase had been expressed in full, Case Note.-While scores of decisions are to be found in the books, in which courts have construed codicils for the purpose of ascertaining how far they modify the provisions of the will, they furnish very little aid as precedents by reason of the varying mainly useful in determining the rules of facts and language involved. They are 58. In each of those cases there was a construction. As stated by the court in conscious effort on the part of the court RE SIGEL'S ESTATE "no case has been found to sustain the will on account of the equity which furnishes an exact precedent for the and justice of the case. The subsequent one now before us." This being true, we acknowledgment was considered as effect- are forced to limit this inquiry to a presenive as the actual attestation in the prestation of the general rules governing the ence of the testator, and was held to be construction of codicils like the one involved a substantial compliance with the statute. in the SIGEL CASE. But we do not regard the reasons given as sufficient to justify a departure from the plain language of our statute. If some other method than the attestation in the It is undisputed that a will and codicil must be construed together as parts of one and the same instrument; and the disposition of the will shall not be disturbed further than to give effect to the codicil. "and no more out of my whole estate," it would have excluded the legatees mentioned in the codicil from taking any part in the residuary estate. McGovran's Estate, 190 Pa. 375, 42 Atl. 705. The last clause in a will, of two inconsistent clauses, is the one that shall stand; and a bequest in a will, revoked by a codicil thereto, is void. Newbold v. Boone, 52 Pa. 167; Stickle's Appeal, 29 Pa. 234; Shreiner's Appeal, 53 Pa. 106; Horwitz v. Norris, 60 Pa. 261; Hart v. Stoyer, 164 Pa. 523, 30 Atl. 497; 1 Jarman, Wills, 136. The codicil was made after the will; it cannot be properly construed except from a point of time later than the will. Whelen's Estate, 175 Pa. 23, 34 Atl. 329. The words "and no more" have been frequently used by testators to prevent the legatee taking a greater share of the estate than the bequest which the words follow. Ellison v. Woody, 6 Munf. 368; Bender v. Dietrick, 7 Watts & S. 284; McGovran's Estate, supra; Everitt's Estate, 195 Pa. 450, 46 Atl. 1. Mr. John G. Johnson also for appellant. Hard v. Ashley, 117 N. Y. 606, 23 N. E. 177; Westcott v. Cady, 5 Johns. Ch. 334, 9 Am. Dec. 306; Page, Wills, §§ 462, 470; 1 Jarman, Wills, 139. The general rule is that, when two legacies are bequeathed to the same person, one by the will and the other by the codicil, and the testator has given both the legacies simpliciter, the courts in such cases, in the absence of intrinsic evidence, consider that, as the testator has given twice, he must prima facie be intended to mean two gifts; and it seems to be immaterial whether the legacies are of equal or unequal amounts, or whether they are of the same or different natures. 2 Roper, Legacies, 999; Manifold's Appeal, 126 Pa. 508, 19 Atl. 42; Stultz v. Kiser, 37 N. C. (2 Ired. Eq.) 538; Wainwright v. Tuckerman, 120 Mass. 232. Gray, Ch. J., in speaking of this question in the Wainwright Case, said: When legacies are given by different instruments, the general rule is that the second is to be treated as additional to the first, in the absence of anything signifying a different intention; but in this, as in all other questions of construction of testamentary instruments, the apparent intention of the testator must be the guide of the court; citing Hooley v. Hatton, 1 Bro. Ch. 390, note, 2 Dick. 461, Lofft, 122; Coote v. Boyd, 2 Bro. Ch. 521; James v. Semmens, 2 H. Bl. 213; Moggridge v. Thackwell, 1 Ves. Jr. 464; Heming v. Clutterbuck, 1 Bligh, N. R. 479; Fraser v. Byng, 1 Russ. & M. 90; Russell v. Dickson, 2 Drury & War. 133, 4 Ir. Eq. Rep. 339, 4 H. L. Cas. 293. In case of doubt, an additional gift is presumed, rather than revocation. Schouler, Wills, § 438. Messrs. Frank Gunnison and T. A. Lamb for appellees. Potter, J., delivered the opinion of the court: Charles Sigel died February 21, 1904, unmarried and without issue, and leaving a large estate. On the day of his death he executed a will, by which he revoked all previous wills, gave certain legacies, and, in his own language, "the balance of my estate to the heirs of Charles Sigel;" that is, to his own heirs. On the same day he executed a codicil, which reads as follows: "I give to my sister, Matilda Sigel, of Kirchheim, Germany, Mary Schmidt, of East Orange, N. J., and Mary Schudt, of West Seneca, N. Y., each one thousand ($1,000) dollars, and to Gus Schudt, my nephew, two thousand $2,000) dollars, and no more." It is agreed that Mary Schmidt and Mary Schudt were one and the same person, the daughter of a deceased sister of testator. Schudt was her maiden name, and Schmidt ner married name. Gus Schudt was the son of testator's sister. All three legatees were heirs at law of the testator, and, in the absence of the codicil. would have been entitled to share in the The codicil will not operate as a revocation of previous testamentary provisions beyond the clear import of its language. Redfield v. Redfield, 126 N. Y. 466, 27 N. E. 1032. In Goodwin v. Coddington, 154 N. Y. 283, 48 N. E. 729, O'Brien, J., lays down a rule that not only justifies the decision in RE SIGEL'S ESTATE, but renders any other impossible. He there says: "A codicil will not operate to revoke a previous devise or bequest beyond the clear import of the language used. Effect must be given, so far as possible, to all parts of the will, and, when the several provisions can be reconciled consistently with the intentions of the testator, as they appear and may be gathered from the original instrument and codicil, that construction will be favored. An estate once devised, or an interest intended to be given, will not be sacrificed on the ground of repugnancy, when it is possible to reconcile the provisions supposed to be in conflict," citing Van Vechten v. Keator, 63 N. Y. 55; Taggart v. Murray, 53 N. Y. 233; Freeman v. Coit, 96 N. Y. 63; Roseboom v. Roseboom. 81 N. Y. 356; Clarke v. Leupp, 88 N. Y. 228; Hard v. Ashley, 117 N. Y. 606, 23 N. E. 177; Byrnes v. Stilwell, 103 N. Y. 453, 57 Am. Rep. 760, 9 N. E. 241; Viele v. Keeler, 129 N. Y. 199, 29 N. E. 78; Redfield v. Redfield, supra. In Bedford v. Bedford, 99 Ky. 273, 35 S. W. 926, it was held that, where the terms of a will clearly give an estate, the words of the codicil must manifest an equally clear intention to revoke it, before they can be construed to have such an effect. tion. distribution of his estate under the residu- | be presumed, this is not true of a codicil. It ary clause of his will. Upon distribution of means, rather, an addition than a revocathe balance shown by the executor's first account, the court below held that the legatees named in the codicil were entitled to receive the legacies there given them, and also to share in the residuary estate under the will. While no case has been found which furnishes an exact precedent for the one now before us, yet we think in principle it is to be governed by the authorities which hold that a gift once made by will is not to be Appellant claims that this construction of cut down by a subsequent codicil, unless the the will is erroneous, and that, by the use intention of the testator to that effect apof the words "and no more" in the codicil, pears clearly or by necessary implication. the testator expressed his intention that the Where it is possible to construe the codi- . amounts there given should be all that the cil so as to give effect to all the provisions legatees named should receive, and that the of the will, it certainly should be done. We residue of his estate should be divided do not think that it can be said in this case among his remaining heirs, to the exclusion that the intention of the testator to revoke of the three named in the codicil. In such the gifts of proportionate shares in the resia case as this, where a will and codicil are due made to the heirs named in the codito be construed, the rule is well settled that cil, is clear from the use of the words "and they must be regarded as parts of one and no more;" for these may be construed to apthe same instrument, and that the codicil is ply equally well as limiting the amount of not to be allowed to vary or modify the will, the additional gifts to the sums named in unless such was the plain and manifest in- the codicil. In Brisben's Appeal, reported tention of the testator. In Spang v. Hill, 2 in 1 Lanc. Bar, October 9, 1869, this court, Woodw. Dec. 45, after a consideration of speaking through Read, J., said: "It would the authorities, the court said: "The gen- appear to be perfectly reasonable that, eral result of the authorities on this subject where a legacy is given by will to a particuis that notwithstanding a codicil, the pro- lar individual, and by a codicil another legvisions of a will are to stand, unless, in or- acy is given to the same person, the second der to effect the purposes of the codicil, it should be considered as additional to the is absolutely necessary that the provisions first; and, therefore, where a paper is codicilof the will shall give way." Chief Justice ary, and two legacies are given to the same Mercur said, in Lewis's Appeal, 108 Pa. 133: person, they are cumulative. The more re"It is not necessary to refer to the numer- cent decisions treat this as conclusive, unous English and American authorities which less a contrary purpose is distinctly manihold as a canon of construction that a clear fested by the instruments themselves." In gift cannot be cut down by any subsequent the present case this general principle would words, unless they show an equally clear unquestionably make the gifts to the indiintention. In applying this rule, it is suf-viduals named in the codicil cumulative, ficient that the subsequent words indicate the testator's intention to cut it down with reasonable certainty, and it is not necessary to institute a comparison between the two clauses as to lucidity. 1 Wms. Exrs. 185. It cannot be cut down by any doubtful expressions in the codicil. The language of the latter must be such as to clearly establish the modification claimed before such effect can be given to it." And in Sheetz's Appeal, 82 Pa. 213, this court said (p. 217): "The clearly expressed purpose of a testator is not to be overborne by modifying directions that are ambiguous and equivocal, and may justify either of two opposite interpretations. Such directions are to be so construed as to support the testator's distinct-persons named in the codicil the amounts ly announced main intention." The fundamental distinction between the nature of a codicil and a later will should be borne in mind. The later will works essentially a revocation, while the codicil is a confirmation, except as to the express alterations which it may contain; and therefore, while in the case of a later will a revocation may were it not for the words "and no more." The doubt raised by them is as to whether they limit the words of the will and defeat the right to share in the residue. Or do they limit only additional gifts? We are inclined to the latter construction, under the accepted principle that, where a devise is made of an estate, a revocation will not be implied, unless no other construction can be placed upon the language. In this case we think the construction adopted by the court below, which saves the right to share in the residue, is reasonable and fair. If the codicil be read into the will, it would then read, "and the balance of my estate to the heirs of Charles Sigel, and, in addition, to the therein named, and no more;" that is, in addition to their proportionate share of the residue as heirs, under the language of the will, they get, respectively, the amounts named, "and no more." We cannot accept the view that the words "and no more" in the codicil clearly and necessarily apply to the provisions of the |