the right shoulders, or giving one defendant a decree over against another, or by the exercise of its restraining powers, as might seem to be just and proper. But it is said that the period of suspension was indefinite, and that the court could not have intended to leave it to the clerk to determine when the suspension was ended, but must have intended to decide that question itself. The period of suspension being capable of being rendered certain, is in effect as definite as if it had been for a given time. And in the event which occurred, to wit, the decision of Lyle's suit against him, it was only necessary to exhibit an official copy of the decision to enable the clerk to issue execution on the decree. That was, in point of fact, the very course pursued; and the execution was quashed only because more than a year had elapsed after the decree was rendered before execution was sued out. On a scire facias afterwards issued, the execution was awarded by the court. Had Lyle's suit been decided differently, and any occasion had arisen for preventing the execution of the decree in this case, such order would have been made by the court in that case as would have relieved the clerk from all embarrassment in regard to the propriety of suing out the execution. And even if it had been necessary to refer to the court the decision of the question whether the period of suspension was ended, or whether an execution might be issued on the decree, it is not perceived that such necessity would render the decree less final, being matter relating only to the execution of the decree. Again it is said that the decree was treated as interlocutory by the court and counsel; orders having been afterwards made in the case. The only orders afterwards made in the case were in relation to the transfer of it, at different times, to courts which succeeded to the late Superior court of chancery of the Richmond district, VOL. VIII.-20 1851. October Term. Fleming & als. V. Bolling & als. 1851 October Terin. Fleming & als. V. Bolling & als. and in 1840 to the Circuit court of Petersburg; and in relation to the payment of the amount of the decree into bank. On the other hand, the court treated the decree as final on the ground assigned for overruling the mo tion for leave to file a bill of review, and in awarding execution upon the scire facias. But if the decree was in fact final, its character could not be changed by the manner in which it was afterwards treated by the court. And again, it is said that to treat the decree, under the circumstances of this case, as final, would operate a surprise upon the appellants, and subject them, at the same time, to great and irremediable injury. If this be so, the necessity of so treating the decree must be matter of extreme regret to the court. But might it not, on the other hand, be said that to treat the decree as interlocutory would subject the appellees to at least as great and irremediable injury. The law limiting the right of appeal was intended to remedy a great evil, and to put an end to litigation. The period of limitation, when the decree in this case was rendered, was three years; but has been since extended to five years. More than five times the former, and three times the latter period elapsed after the rendition of the decree before the appeal was applied for. Had the decree been interlocutory in keeping open a single matter, yet, being certainly intended to be final as to all other matters, the appellants could at once have appealed from it; and no good reason appears for their not having done so. Were this court now to set aside a decree made twenty-five years ago, and require a resettlement of transactions which commenced fifty years ago, which could not be settled without great difficulty when they were comparatively fresh, and the parties and their witnesses alive, and which, now that the parties and witnesses may all be dead and the vouchers lost, could not be expected to be correctly settled at all, great and irremediable injury might be done to the appellees. But it is the duty of 1851. October Term. & als. the court to decide the question of law, whether the decree is interlocutory or final, without being influenced by the consequences of the decision, except so far as they Fleming may throw light on the question to be decided. And the court being of opinion that the decree is final, the appeal must therefore be dismissed. DANIEL, J. dissented. APPEAL DISMISSED. V. Bolling & als. Richmond. MOORE v. MOORE's ex'or & als. (Absent Cabell, P.) December 9th. QUERE: Whether an attestation of a will out of the room in which the testator is lying, and out of his sight, but in a This was a bill filed in the Circuit court of King and Queen county, by James E. Moore, to set aside the will of his father, Richard Moore deceased, which had been admitted to probat in the County court of that county in October 1834. An issue devisavit vel non was directed; and upon the trial the jury found a special verdict. The only question in the cause was as to the attestation of the testamentary paper. It was attested by 1851. October Term. 1851. October Term. Moore V. Moore's ex'or & als. three witnesses; and the special verdict finds that the will was written on the day on which it bears date, the 23d of July 1834, at the request and dictation of Richard Moore; and after it was written was read to him, and then read by him carefully; and was then signed by him in the presence of all the attesting wit nesses, who were by him requested to sign it as witThat the will was then taken by the witnesses into the passage, and there signed by them in the presence of each other; after which they carried it back and handed it open, with their names subscribed to it, to the testator, who held it a minute or more and looked at it, and then gave it to one of them to be folded up for preservation. nesses. The testator, lying in his ordinary position in his bed, could not have seen the attesting witnesses sign their names; but he might have seen them if he had got out of bed, or by changing his position in the bed so as to lean over the foot of it; and his state of health and strength was such at the time that he might have got out of bed, or have so changed his position in bed if he had desired to do so: But the testator did not get out of bed, nor change his position in the bed so as to lean out at the foot of it. Upon this special verdiet the court below made a decree establishing the will; whereupon James E. Moore applied to one of the judges of this court for an appeal, which was allowed. R. T. Daniel, for the appellant. This case turns upon the true meaning of the words "in the presence," in the act of 1823 concerning wills. That act uses the words as to the witnesses to a will "subscribing in his presence," the presence of the testator. The special verdict shews that the will was not signed in the presence of the testator, nor in the room where the testator lay. The principle established by the cases is, that where the witnesses attest the will out of the room in which the testator is, he must be in such a position as that he has the capacity, without changing that position, to see the witnesses when they subscribe the paper. The cases on this subject are reviewed in Neal v. Neal, 1 Leigh 6. Although in that case the judges differed upon the question whether an attestation in the room was in all cases good, they were all of opinion that where an attestation is made out of the room it must be made so that the testator has a capacity to see the witnesses attest without changing his position. It will be urged that the testator looked at the paper after it was attested. It does not appear that a word was said at that time: And what passed then might have been a publication; but cannot be made a subscription by the witnesses in the presence of the testaDoe v. Manifold, 1 Maule & Selw. 294. tor. Griswold, for the appellee. The counsel for the appellant has taken no distinction between the paper as a will of realty and a will of personalty. The will was admitted to probat in 1834, before our statute requiring attesting witnesses to wills of personalty. Sess. Acts of 1834–5, ch. 6, p. 47; Redford v. Peggy, 6 Rand. 316. It must be conceded that the statute in relation to wills of real estate is broad enough in its terms to exclude all wills where the witnesses did not subscribe in the actual presence of the testator: But the courts have established a constructive presence. The authorities on the subject are cited in Neal v. Neal, 1 Leigh 6. All these authorities concur in declaring that it was the object of the statute to prevent imposition upon the testator. And viewing this as the object of the law, the courts have gone far to uphold fair wills by giving a liberal construction to the words "in the presence of" 1851. October Term. Moore V. Moore's ex'or & als. |