Page:United States Reports, Volume 209.djvu/295

 LIPPHAP. Dv. HUMPHREY. 209 U. 8. Opinion of the Court. ter of law, nd on the co.ntra'y, the presumption where a will is properly signed and executed is that the testator knows the oontenhs. Where there is evidence of the practice of fraud or of undue influence, affirmative proof of knowledge of the contents nay be necessary, but not so in any other case, simply because of a presumption arising from inability to read. Taylor v. Creswell, 45 Maryland, 422, 431; Vernon v. Kirk, 30 Pa. St. 224; K//ng v. Kinsey, 74 N. C. 261; Hoshauer v. Hoshauer, 26 Pa. St. 404; Cliton v. Murray, 7 Georgia, 565; Missquri, 504; Nickerson v. Buck, 12 Cush. 341; Guthri v. Pr/ce, 23 Arkansas, 407. In the latter case testatrix's name was subscribed to the will, and between her Christian and surname was her mark in the form of a cross. The attesting witnesses signed the will at her request, in her presence, and in the presence of each other. She produced the paper writing for them to attest and declared that it was her will, and that she desired them to witness it as such. She did not write her name, but made her mark to the paper. It was not shown who did write her name to the will. It was not written by either of the witnesses, nor in their presence. Testatrix could not read, and the will was not read to her in the presence of or to the knowledge of he witnesses..The trial court instructed the jury, in effect, that notwithstanding the will was executed in accordance with the formalities prescribed by the statute, yet it being shown that the testatrix could not read, the will was invalid, unless it was 'proved that it was read to her and that she as informed as to its contents. Mter a review of the authorities, the Supreme Court of Arkns held such instruction to be erroneous, and Chief Justice English, in the ooncluding part of his opinion, said: "It was proven that she could not read, and it was not shown that the will was read to her at the time it was executed, but it may have been before. She produced the will herself, declared it to be her will, asked the itaesses to attest it as

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