Appeal of Reaver's Executors

Schmucker, J., delivered the opinion of the Court. The record in this case presents for our consideration the single question whether a mark made by a witness to a will aá his signature constitutes a sufficient attestation by him. The will of Washington Reaver, late of Carroll County, when presented to the Orphans’ Court of that county, was duly signed and sealed by. him and was attested as follows : “Signed, sealed, published and declared by Washington Reaver as and for his last will and testament, in the presence of us, who at his request in his presence and in the presence of each other, have subscribed our names as witnesses thereto. Witnesses.

Clayton H. Harner, his Charles X Engle.” mark After due proof of the custody of the will and of the fact that no other will of the testator had been found or was supposed to exist, each of the two witnesses made oath before the Orphans’ Court that he saw the testator sign and seal the will, that he heard him pronounce and declare it to be his last will and testament and that at the time of doing so he (the testator) was to the best of the witnesses’ apprehension, ⁷³⁶ knowledge and belief of sound and disposing mind, memory and understanding and that he had subscribed his name as a witness of the testator, in his presence and in the presence of the other witnesses. Both witnesses also swore that Engle had subscribed his name as a witness to the will by making his mark to his name which had been written for him by Harner. The Orphans’ Court then passed the order appealed from refusing to admit the will to probate because it was “not executed according to the Act of Assembly in such case made and provided.” The Orphans’ Court were clearly, in error in refusing probate of this will. The provision of the statute of this State that a will must be attested and subscribed by the witnesses in the presence of the testator had its