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When a testator is not prevented by physical infirmities from seeing and hearing what goes on around him, his will is attested in his presence if he understands and is conscious of what the witnesses are doing when they write their names, and can, if he is so disposed, readily change his position so that he can see and hear what they do and say. It is not necessary that he should actually see the witnesses, for them to be in his presence. They are in his presence whenever they are so near him that he is conscious of where they are and of what they are doing, through any of his senses, and are where he can readily see them if he is so disposed. The test, therefore, is to inquire whether he understood what the witnesses were doing when they affixed their names to his will, and could, if he had been so disposed, readily have seen them do it.
George Demaris, a bachelor, 39 years of age, died in Milton, Umatilla county, April 11, 1939, leaving an estate which was appraised as worth $ 7,347.57. The contested instrument made the deceased's sister, Ida Fuller, sole beneficiary. She is the proponent. The original contestant was Amos Demaris, father of the deceased. He died after the proceeding had begun and was succeeded as contestant by Arch Demaris, his son and executor of his estate. The petition made two charges against the script: (a) improper execution; and (b) undue influence. The latter charge has been virtually abandoned. The lower court found that the will was entitled to probate and appellant sought review, asserting that the will was not properly executed because the witnesses had not signed it "in the presence of the testator" as required by Or. Rev. Stat. § 18-201.
Under Or. Rev. Stat. § 18-201, was it necessary that the attesters have been within the range of the testator's vision when they signed?
The court affirmed, applying a liberal interpretation to the statutory requirement, it concluded that it was unnecessary that the attesters have been within the range of the testator's vision when they signed. If they were so near at hand that they were within the range of any of his senses, so that he knew what was going on, the requirement had been met. Here, two disinterested persons were brought to the testator's bedside to be present while he executed his will. Later, one of them signed the will within the testator's range of vision, voice, and hearing from an adjacent room. When the other attesting witness signed the will, he was within 20 feet of the testator although not within his range of vision. Thus, both witnesses substantially complied with § 18-201.