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Contracts And Evidence. The act of witnessing an instrument of writing, at the request of the party making the same, and subscribing it as a witness.
It will be proper to consider, 1. how it is to be made 2. how it is proved; 3. its effects upon the witness; 4. its effect upon the parties.
The attestation should be made in the case of wills, agreeably to the direction of the statute and in the case of deeds or other writings, at the request of the party executing the same. A person who sees an instrument executed, but is not desired by the parties to attest it, is not therefore an attesting witness, although he afterwards subscribes it as such.
The general rule is, that an attested instrument must be proved by the attesting witness. But to this rule there are various exceptions, namely: 1. If he reside out of the jurisdiction of the court; 2. or is dead; 3. or becomes insane; 4. or has an interest; 5. or has married the party who offers the instrument; 6. or refuses to testify; 7. or where the witness swears he did not see the writing executed; 8. or becomes infamous; 9. or blind. From these numerous cases, and those to be found in the books, it would seem that, whenever from any cause the attesting witness cannot be had secondary evidence may be given. But the inability to procure the witness must be absolute, and, therefore, when be is unable to attend from sickness only, his evidence cannot be dispensed with.
When the witness attests an instrument which conveys away, or disposes of his property or rights, he is estopped from denying the effects of such instrument; but in such case he must have been aware of its contents, and this must be proved.
Proof of the attestation is evidence of the sealing and delivery.
That clause wherein the witnesses certify that the instrument has been executed before them, and the manner of the execution of the same. The usual attestation clause to a will, is in the following formula, to wit: 'Signed, sealed, published and declared by the above named A B, as and for his last will and testament, in the presence of us, who have hereunto subscribed our names as the witnesses thereto, in the presence of the said testator, and of each other.' That of deeds is generally in these words 'Sealed and delivered in the presence of us.' When there is an attestation clause to a will, unsubscribed by witnesses, the presumption, though slight, is that the will is in an unfinished state and it must be removed by some extrinsic circumstances. This 'presumption is infinitely slighter, where the writer's intention to have it regularly attested, is to be collected only from the single word 'witnesses.'
ATTESTING WITNESS. One who, upon being required by the parties to an instrument, signs his name to it to prove it, and for the purpose of identification.
The witness must be desired by the parties to attest it, for unless this be done, he will not be an attesting witness, although he may have seen the parties execute it.