¶1*198To a petition for a rehearing—
¶2DELIVERED THE FOLLOWING RESPONSE!
¶3It is contended by counsel in the petition for rehearing, as was done in their brief, that Mrs. Porter having1 been a married woman when the paper in contest was-written and subscribed by her, it was absolutely void, and being so then, it could not be made valid by any act or acts on her part after she became a feme sole-' short of re-writing and re-subscribing it, however-solemn and conclusive of her intentions as to the disposition of her estate they might be, •
¶4Before thus curtailing a right which it is declared in-section 2, chapter 113, every person of sound mind, not under twenty-one years of age, nor a married woman, may exercise it, should be made manifest that some-indispensable requirement of the statute has not been: complied with, or at least that the letter or spirit of it would be violated by establishing the paper as her will.
¶5Section 5 does not in terms, nor was it intended to abridge the right conferred by section 2, but merely to-prescribe the mode in which wills should be executed-with a view to insure identity and prevent fraud, or in-the language of counsel, “to secure a will which expresses the wishes of the testator.” It does not, therefore, follow that, because there is contained in section 5-no explicit direction as to the precise manner in which a will may be made valid in the state of case presented by this record, the paper in contest is to be held void. On the contrary, if the right to dispose of her estate-by will, which after the death of her husband Mrs. Porter clearly had, can be upheld without violating the-*199letter or spirit of the statute, it is the duty of the court; to do it.
¶6Inasmuch as the statute, for obvious reasons, withholds from' a married woman the right to dispose of her estate by will, except in the cases mentioned in section 4, it of course is necessary for her, after she becomes-testable, to do some act equivalent to an acknowledgment as her will of the instrument, executed while she was under disability.
¶7If the paper in contest had' not been wholly written by the testatrix, it would have'been necessary, in order' to give it validity, for her, after the death of her husband, to re-acknowledge it in the presence of a-t least two credible witnesses, and for them to subscribe their names in her presence. But it would not, in that case,, have been indispensable for the will to be either re-written or re-subscribed by her. For, as the statute does not peremptorily require a will to be either written or subscribed by the testator in the presence of the attesting witnesses, but in plain terms makes it suffice, if it be acknowledged by him in their presence and subscribed by them in his presence, it is not necessarily a material inquiry at what time before being acknowledged it may have been written or subscribed by him.
¶8If, then, the acknowledgment by a testatrix after she becomes a feme sole in presence of witnesses, who then subscribe it in her presence, is sufficient to make an instrument subscribed, but not wholly written by her while she was a married woman valid as her will, why should not the paper in contest which the statute does not require to be either acknowledged or attested, but which has been deliberately and freely adopted, recog*200rnized, and left by the testatrix as her will, and that indubitably disposes of her estate according to her wishes and intentions, be also held valid? If, in one case the acts of acknowledgment and attestation that render valid an instrument before invalid as a will, may be proved by oral testimony, why may not the ■acts and declarations of the testatrix in this case, which •conclusively establish her adoption and recognition of the paper in contest as her will, be likewise proved ?
¶9To admit to probate a will upon the facts presented by this record would violate no provision of the statute nor its spirit. But to reject the paper presented would not only defeat the manifest wishes and intentions of the testatrix, but .deprive her of a right in express terms given.
¶10The petition for rehearing is overruled.