¶1{dissenting). — It is not insisted that the formalities required by the statute in order to the due execution of a will can be dispensed with and the mere acknowledgment of the testator substituted therefor. In order, therefore, to give effect to the statute, in case the name of the testator is subscribed by another for him, it is essential to the perfection and validity of the instrument that it be signed by the direction of the testator and in his presence. That being so, it follows that a writing not so signed can not be given validity by adoption, however solemnly made. If the name of Col. Price was not, in fact, written in his presence, and at his request, it was not his will, and no declaration *531-afterwards made by him to the contrary, would change its legal character or effect. I understand the majority •of the court agree to these propositions.
¶2It is also well settled that the burden of proof is on the proponents of the, will to prove its due and legal -execution. Norton v. Paxton, 110 Mo. 456; Gay v. Gililan, 92 Mo. 255; Schouler on Wills [2 Ed.], sec. 239. I agree that the sole question on this branch of the ■case is whether there was competent, legal evidence, •offered by proponents sufficient to make prima facie proof that the instrument in question was executed in the manner prescribed by the statute. I agree that the declarations of the testator made at the time of the attestation of the will, were admissible as part of the res gestee. When witness Moorman attested the writing, Col. Price stated- that he had it written. This declaration, I may admit, tended to prove that the instrument was both written and signed by the direc-' tionof the testator; but I think no one can fairly claim that it, taken alone, had the remotest tendency to prove that the name was subscribed thereto in his presence, When we undertake to make the simple declaration ■of Col. Price that the instrument was his will, evidence that it was executed under all the formalities required by the statute, we virtually throw aside the statute altogether, and make a will by mere adoption. We could with equal propriety dispense with the attestation of witnesses.
¶3The evident design of the statute, in requiring these formalities, when the name of a testator -was written by another, was to prevent, as far as possible, the perpetration of frauds and- impositions upon the ignorant and illiterate. But the statute does not confine its requirements to that class' of persons. The requirements apply equally to the educated- and intelligent business man. Nor are the rules'of evidence, *532or its weight given flexibility to suit the intelligence or or ignorance of the testator. I have no doubt that the paper declared by Col. Price as his will made a disposition of his property according to his intention and wishes. Had he been unable to read or- write, and barely competent to make a will and had the daughter who wrote the will and signed his name to it, been the principal legatee, to the substantial disinheritance of brothers and sisters, no more and no less evidence of its execution would have been required. More weight would doubtless be given to the declarations of an intelligent, than to those of an ignorant, person, but the competency of the evidence of each would be the same. I am unable to see that the declaration of Col. Price had the' the least tendency to prove that his name was signed to the writing in his presence, notwithstanding his intelligence, his business capacity, and his strong will. These could only give weight to declarations, which would have been evidence if spoken by the most illiterate. If a declaration does not tend to prove a fact, the character of the person making it is wholly immaterial.
¶4The other circumstances shown by the evidence are that the testator, from bodily affliction, was unable to write with ease and his daughter Mrs. Kendrick generally acted as his amanuenis. They lived in the same house. The will was written some years before the death of the testator, and during the time was kept in his possession. This evidence tends to prove that the will was written and signed by the direction of the testator and that he was satisfied with the disposition he had attempted to make of his property; but I am at a loss to see the least tendency it has to prove the fact that the will was signed by Mrs. Kendrick in his presence. The circumstances were as consistent with one theory as the other. They tended to prove neither. The burden of proof was on the proponents. I think there was no evi*533dence tending to prove the due execution 'of the will, and, therefore, I do not concur in the second paragraph of the majority opinion, or in the concurring opinion of the learned chief justice.