¶1The first question for consideration is, whether the deposition of William Pearson is evidence in the cause generally, or only for the purpose of contradicting the testimony he has given here at the bar. In an ordinary trial at bar, it is admitted that such a paper would not be evidence, except for the purpose of discrediting the witness, as for instance, if Pearson had been sworn on the former trial of this cause, and the deposition then offered; but it is said that the case is now varied, because the register has made an order that the deposition *458 should be read on the trial of this issue. How are we to understand this? It was an order that it should be read; for legal purposes. The register did not mean to make an order for the introduction of other than legal proof. The register knew that Pearson now contradicted his former deposition. He knew that Pearson was to be examined as a witness here; for he sent the issue a second time for that very purpose. On the former trial the plaintiffs refused to call Pearson, under the apprehension that they would not be allowed to impeach his testimony, even by reading his former deposition; and it is probable that the same apprehension induced the register to direct that the former statement of the witness as well as his present testimony should be laid before the jury, that they might be weighed together. Yet the deposition is not legal evidence for general purposes in the cause, and the register's order could not make it so. The deposition of Lemar is evidence ex necessitate; so made by the law; but evidence of an inferior grade, there being no opportunity of cross-examination; but yet it is evidence to be considered by the jury and weighed and scrutinized. In connection with this, the jury will take the evidence of Pearson; not his deposition, but his evidence, as corrected by his deposition. In both he states that he took the paper in his hand, called the testator's attention to it, and asked him if he wished him to sign it, and that Rash answered affirmatively. The question then is, did Rash then understand what he was doing, and what was the meaning of the answer. Did it amount to a recognition by him that it was his will, and a request that Pearson should sign it as a witness. if so, it was a good execution. If not, otherwise. If it was a request to the witness to sign it as a witness, it was in effect to attest that the testator signed, sealed and delivered the paper as his will, which are the words of the attestation here.
¶2Where one witness alone proves the execution of a will, it is insufficient; the law requiring two witnesses. Each of the witnesses must have seen the testator sign the will; or have heard him, in form or substance, acknowledge it to be his will. Such acknowledgment is sufficient. The witnesses also, must sign in the presence of the testator; but this means only that they shall sign in the same room, and where the testator could see it if he choose; not that he did actually see the witnesses sign.
¶3The signing might be either personally, by mark, or by another subscribing the testator's name at his request and in his presence. As the execution may be proved by an acknowledgment of signature, where the signing is by the testator; so where the name is written by another, proof of an acknowledgment may be sufficient, but; it ought to be plenary and conclusive, not only as to the fact of acknowledgment, *459 but also that the name was subscribed in the testator's presence and by his express direction.
¶4 Verdict for the will.