¶1concurring. This is an appeal by Mattie Jordon Coleman et al., heirs at law of Mary Gaines Jackson, from a decree admitting to probate a will executed some three months before the aged testatrix’s death. The contestants allege that the will was not signed by the testatrix in the manner required by law; that it was not properly attested by the witnesses in the presence of each other; and that the testatrix did not have sufficient testamentary capacity.
¶2Contestants’ first point is directed to the fact that the .will bears testatrix’s purported signature. During the trial much testimony was directed to the fact that testatrix became blind 17 or 18 years before her death and that she did not thereafter attempt to write. There was also proof to the effect that testatrix had made other wills before tbe present one was executed and'that testatrix had executed tbe previous wills with an “X.” However, tbe draftsman of tbe will, a Mrs. Sands, testified that, after reading tbe will to the testatrix, she “sorta held her band to keep it on the line” while she signed the will.
¶3We held in Vines et al v. Clingfost, Exr., 21 Ark. 309 (1860), that where tbe testator holds tbe pen in subscribing bis name to tbe will, and another person guides it, tbe signature thus made is tbe act of tbe testator and that it was not necessary for tbe person guiding tbe testator’s band to sign the will as an attesting witness to tbe signature. Under tbe circumstances, we bold that tbe trial court’s finding of validity on this issue is not contrary to tbe evidence.
¶4Tbe second point raises tbe issue of whether a will is validly executed when not attested by the witnesses in tbe presence of each other. Tbe Probate Code, Ark., Stat. Arm. § 60-403 (Supp. 1965), provides'as follows, to-wit:
Execution. — Tbe execution of a will, other than holographic, must be by tbe signature of tbe testator and of at least two witnesses as follows:
a. . . .
(1) Himself sign;, or
(5) In any of tbe above cases tbe signature must be at tbe end of tbe instrument and the act must he done in the presence of two or more attesting witnesses. (Emphasis supplied.)
¶5This section of the Probate Code was. before tbe court in Ash v. Morgan, 232 Ark. 602, 339 S. W. 2d 309 (1960). In commenting upon tbe necessity for tbe witnesses to attest tbe will in tbe presence of each other, tbe court used tbe following language, to-wit:
“We think it evident from the above admitted .facts that the sections of § 60-403 specifically requiring that a will to be valid must be executed ‘in the presence of two or more attesting witnesses... [and] the attesting witnesses must sign at the request and in the presence of the testator’, were not complied with, and therefore the will must be and is declared invalid.
But, says appellant, there was substantial compliance with the statute here involved (Ark. Stats. § 60-403). What constitutes substantial compliance with a statute is a matter depending on the facts of each particular case. Here neither of the alleged attesting’ witnesses signed in the presence of the testator, nor in the presence of each other.” (Emphasis supplied.)
¶6Consequently, the writer is of the opinion that under the Probate Code, Ark. Stat. Ann. § 60-403 a(5) (Supp. 1965), it is a prerequisite to the validity of a will that the attesting witnesses must attest the testator’s execution or the acknowledgment thereof in the presence not only of the testator but of each other. Other members of the court, relying on Rogers v. Diamond, 13 Ark. 474 (1853), take the position that there has never been any requirement that the attestation by two witnesses must be in the presence of each other. However, the statute (now codified as Ark. Stat. Ann. § 60-104 [1947]) upon which Rogers v. Diamond, supra, was based reads substantially different from Probate Code, quoted above. The statute there relied upon provided that the subscription by the attesting witnesses “.. shall he made by the testator in the presence of each of the attesting witnesses...” (Emphasis supplied.) When the foregoing language is compared with the present Probate Code, i. e. “... the act must be done in the presence of two or more attesting witnesses,” it appears that the Probate Code, Ark. Stat. Ann. § 60-403 a(5) (Supp. 1965), changed the law to conform to what this court said in Rogers v. Diamond, supra, would be the most prudent course.
¶7Having decided that the Probate Code requires that the witnesses attesting a will must do so in the presence of the testator and each other, it does not necessarily follow that the witnesses in this case did not attest the will in the presence of each other as the term “presence” has been interpreted under the so-called “conscious presence” tests. In re Hoffman's Estate, Dist. Ct. of App., 290 P. 2d 669 (Cal. 1955).
¶8The only attesting witness who testified stated he was one of the witnesses to an instrument that they said was a will, and that he and the other attesting witness had been eating in the kitchen before they went into the room where the testatrix and Mrs. Sands were. They asked him to sign first and after he signed he immediately left the room and went out in the back yard. He didn’t know what happened after he left the room, but the other witness (Marie) told him that she had signed her name.
¶9Under any practical interpretation of the statutory provision, Ark. Stat. Ann. § 60-403 a(5) (Supp. 1965), requiring the execution of a will “in the presence of two or more attesting witnesses,” the execution described obviously was attested by the witnesses in the presence of each other.
¶10On the issue of testamentary capacity, the testimony was conflicting. While most of the contestants’ attack was directed to the asserted inability of the testatrix to write, there was testimony which, if believed by the trial court, would have sustained a finding in their favor. However, the testimony of the will draftsman and others to the effect that testatrix’s mental state was reasonably clear; that even with her blindness she would sometimes recognize her friends and kindred; and that she knew her relatives, and also knew what property she owned, was sufficient to sustain the trial court’s finding to the effect that she had sufficient testamentary capacity to make the will.
¶11Therefore I concur in the affirmance.