Estate of Fleishman

The question here is whether the instrument propounded for probate as the will of Lena Fleishman, deceased, was signed by the persons whose names are appended thereto as subscribing witnesses in the presence of the testatrix.

Section 1276 of the Civil Code of California provides, in the matter of an attested will, subdivision 4, that there must be two attesting witnesses, each of whom must sign his name as a witness, at the end of the will, at the testator’s request and in his presence.

In presence of the testator means that the testator must not only be present corporally, but mentally as well, capable of understanding the acts which are taking place before him.

In this case the instrument was signed by the subscribing witnesses in an apartment ádjoining the room in which *19 the testatrix was lying ill upon her bed. Between the bed, and opposite where her head lay, there was a partition wall, an absolutely opaque substance, dividing the two apartments, and on the other side of that wall, at a table near the window, without the sight or hearing of the testatrix, the two witnesses subscribed their names, the testatrix having previously signed her name while reclining on her…