Witnesses to wills are required under the laws of all the states; the number of necessary witnesses varies, three being required in some states, and only two in others.7

In the absence of a statutory requirement, it is not necessary that the witnesses should see the testator sign the will.8 It is necessary, however, that the witnesses should see the signature.9

It is provided by statute, in many of the states, that the testator must either sign the will in the presence of the witnesses, or acknowledge the signature to be his before them. The question as to what constitutes a sufficient signing in the presence of the testator was discussed by the court in the case of Healy vs. Bartlett,10 as follows:

4Gardner on Wills, Sec. 66.

5 In re Knox's Estate, 131 Pa., 220; 18 Atl 1021.

6 Armstrong's Executors vs. Armstrong's Heirs, 29 Ala., 538.

7 See Statutes of the several States.

8 Gardner on Wills, Sec. 67; Woodruff vs. Hundley, 127 Ala., 640. 9 Vogel vs. Lehritter, 139 N. Y., 223; 34 N. E., 914.

"When a testator is not prevented by physical infirmities from seeing and hearing what goes on around him, it is the general, if not the universal rule, that his will is attested in his presence if he understands and is conscious of what the witnesses are doing when they write their names, and can, if he is so disposed, readily change his position so that he can see and hear what they do and say. Casson vs. Dade, 1 Bro., C. C. 99; Shires vs. Glasscock, 2 Salk, 688; Davy vs. Smith, 3 Salk, 395; Riggs vs. Riggs, 15 Mass., 238; Hopkins vs. Wheeler, 21 R. I., 533, 45 Arl. Rep. 551; Cook vs. Winchester, 81 Mich., 581, 46 N. W. Rep. 106; Cunningham vs. Cunningham, 80 Minn., 180, 83 N. W. Rep. 58. In other words, if he has knowledge of their presence, and can, if he is so disposed, readily see them write their names, the will is attested in his presence, even if he does not see them do it and could not without some slight physical exertion. It is not necessary that he should actually see the witnesses for them to be in his presence. They are in his presence whenever they are so near him that he is conscious of where they are and of what they are doing, through any of his senses, and are where he can readily see them if he is so disposed. The test, therefore, to determine whether the will of a person who has the use of all his faculties is attested in his presence, is to inquire whether he understood what the witnesses were doing when they affixed their names to his will, and could, if he had been so disposed, readily have seen them do it.

19 73 N. H., 110.

"Unless the legislature intended to discriminate against testators who are deprived of the use of some of their faculties by mere physical infirmities - and there is no evidence that they did - the same test, so far as it is applicable to persons in their situation, must be applied to determine when a will is attested in their presence. It is clear that a witness who is in the presence of a testator who can see would still be in his presence if the testator should instantly become blind. So when a testator is deprived of the use of any of his faculties by mere physical infirmities, the tests to determine whether his will is attested in his presence is to inquire whether he was conscious of the presence of the witnesses and understood what they were doing when they wrote their names, and could also, if it had not been for his physical infirmities, readily have seen and heard what they were doing, if he had been so disposed. Raymond vs. Wagner, 178 Mass., 315, 59 N. E. Rep., 811; Maynard vs. Vinton, 59 Mich., 139, 26 N. W. Rep., 401; 60 Am. Rep., 276, 283, 284. It follows that if the testator's broken leg prevented him from readily seeing what the witnesses were doing when they attested his will, the jury were correctly instructed as to what would constitute an attestation in his presence."11

11 "It is provided by the statute of frauds and the statute of Victoria in England, and by similar statutes in the United States, that a subscription by a witness to a will must be made in the 'presence' of the testator. It is necessary, in determining the facts of any given case whether the subscription by the witness to the will was made in the 'presence' of the testator that due regard should be given to the purpose of the statute. 'The design of the statute, in requiring the attestation to be made in the presence of the testator, was to prevent the substitution of a surreptitious will. In the presence of the testator, however, is within his view. He must be able to see the witness to attest the will, or, to speak with more precision, their relative position to him, at the time they are subscribing their names as witnesses, must be such that he may see them if he thinks proper to do so, and satisfy himself by ocular demonstration that they are witnessing the very paper he designed to be his last will. Hill vs. Barge, 12 Ala., 687. But it is likewise necessary that, 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." Cook vs. Winchester, 81 Mich., 581, 46 N. W. Rep., 106; Pg. 414, Vol. 6, Am. & Eng. Anno.

Section 15. Sealing And Dating

Neither sealing12 nor dating13 is required except when required by statute. Sealing a will, will not do away with the necessity for signing 14 and witnesses.15