Attestation

The act of witnessing an instrument in writing, at the request of the party making the same, and subscribing it as a witness.

3 P. Wins. 254; Shanks v. Christopher, 3 A. K. Marsh. (Ky.) 146; Hall v. Hall, 17 Pick. (Mass.) 373.

Deeds, at common law, do not require attestation; 2 Bla. Com. 307; 3 Dane, Abr. 354; Thacher v. Phinney, 7 Allen (Mass.) 149; and there are several states where at common law it was not necessary; Ingram v. Hall, 2 N. C. 205; Dole v. Thurlow, 12 Mete. (Mass.) 157. In many of the states there are statutory requirements on the subject, and where such exist they must be strictly complied with. It is generally safe to have two witnesses, one of whom may be and usually is the officer taking the acknowledgment.

See Coit v. Starkweather, 8 Conn. 289, 20 Am. Dec. 110; Stone v. Ashley, 13 N. H. 38; Shults v. Moore, 1 Mc Lean 520, Fed. Cas. No. 12,824; Ross \. Worthington, 11 Minn. 443 (Gil. 323), 88 Am. Dec. 95; 2 Greenl. Ev. § 275, n.; 4 Kent 457.

The requisites are not the same in all cases as against the grantor and as against purchasers. See French v. French, 3 N. H. 234. presence of the grantor, and at his request, it is sufficient; Jar. Wills 87-91; 2 B. & P. 217. Wills must usually be attested by competent or credible witnesses; 2 Greenl. Ev. § C91; Hawes v. Humphrey, 9 Pick. (Mass.) 350, 20 Am. Dec. 481; -1 Purr. 414; who must subscribe their names attesting in the presence of the testator; Bdelen v. Hartley's Lessee, 7 Harr. & J. (Md.) 61, 16 Am. Dec. 292; Neil v. Neil, 1 Leigh (Va.) 6; 1 Maule & S. 294; 2 Curt. Eccl. 320; 3 id.

118; 2 Greenl. Ev. § 678; Snider v. Burks, 84 Ala. 53, 4 South. 225; Mays v. Mays, 114 Mo. 536, 21 S. W. 921.

And see Nickerson v. Buck, 12 Cush. (Mass.) 342; 1 Yes. Ch. 11; 2 Washb. R. P. 682; but be need not sign in their presence; Stirling v. Stirling, 64 Md. 138, 21 Atl. 273; Simmons v. Leonard, 91 Tenn. 183, 18 S. W. 280, 30 Am. St. Rep. 875. The term "presence" in a statute requiring the subscription of witnesses to a will to be made in the presence of the testator, means "conscious presence;" Tucker v. Sandidge, 85 Va. 546, 8 S. E. 650. In some states three witnesses are required to wills devising lands; in the majority of states only two. In Pennsylvania no attesting witnesses are required except in wills making gifts to charity, where two credible witnesses, not interested in the charity, are required. A person may attest a will by making his mark, although the person who writes his name fails to sign his own name as a witness to the mark; Davis v. Semmes, 51 Ark. 4S, 9 S. W. 434. Persons signing as witnesses must do so after the testator has signed the will; Brooks v. Woodson, 87 Ga. 379, 13 S. E. 712, 14 L. R. A. 160. If a will is signed by only two witnesses where three are required as to realty, it is inoperative as to the realty but valid as to the personalty; Hays v. Ernest, 32 Fla. 18, 13 South. 451.