Blauvelt r. Ackerman.

and it was received by Ackerman's estate, May 20th, 1856. No interest is allowed by the master to January 1st, 1857. This omission, I think, should be corrected. The amount of the interest at six per cent., is $75.33, which, if credited to complainant, in the balance of January 1st, 1857, would have increased the balance due, August 1st, 1871, by the sum of $141.09. To correct the report upon this exception, the latter sum should be added at the last named date.

The ninth and last exception relates to commissions. The sum of $173.50 is allowed by the master in favor of the defendants and is introduced in the account as of November 1st, 1859. I am of opinion that no commissions in this case ought to be allowed. The assignee's charges for his services and time are allowed as such by the master, and together with the questionable manner in which the trust has been generally performed, should exclude the further allowance of commissions under the statute on the amount of the receipts. The interest on this sum of $173.50, from November 1st, 1859, to August 1st, 1871, at six per cent., is $122.31, which, together with the principal, should be added to the balance due, as shown by the report, at the last named date.

The total sum to be added to the amount found to be due by the master, is consequently the sum of $669.45. By adding this sum, the amount due from the estate of John Ackerman, Jr., deceased, to the complainant, on the 1st of August, 1871, will be $4307.04, for which, with interest from the date of the report, the complainant is entitled to a de

cree.

This amount differs considerably from some of the several results I have been disposed to adopt in looking at the case from different standpoints, and with reference to different aspects of the evidence. But upon the whole, my conclusion now reached is more satisfactory than any other I have considered, and I think, more nearly adjusted to all the known and all the probable equities in the case. The extravagant claims set up in the bill and attempted to be sustained by the complainant himself, have not impressed me with the convic

Blauvelt v. Ackerman.

tion that his recollections and statements, or those of the witnesses he has produced, can be accepted with confidence against Ackerman, who is dead. Nor, on the other hand, can I see reason to justify the conclusion that the accounts were settled in Ackerman's life. I think they were not. The parties, by their own acts and management, have covered the case with obscurity and difficulties, and if exact justice cannot now be done, it is due to themselves that it is so.

PREROGATIVE COURT.

FEBRUARY TERM, 1872.

In the matter of the Probate of the last will of WILLIAM G. ALPAUGH, deceased.

Where it does not appear whether the testator did or did not sign the will or acknowledge the signature to be his in the presence of the witnesses, but the testator, after his name was signed to the will, declared it to be his will and asked them to sign it as witnesses, and the attestation clause is in the handwriting of the testator and declares that it was signed in the presence of witnesses, the certificate must be taken as true, and as proof of signing in their presence.

On appeal from decree of the Orphans Court of Hunterdon county.

Mr. Bird and Mr. G. A. Allen, for appellant.

Mr. Van Fleet, for respondents.

THE ORDINARY.

The objection to the will in this case being admitted to probate is, that it does not appear by proof that the testator signed it in the presence of the witnesses, or that he acknowledged the signature to be his in their presence. This is required by the statute, Nix. Dig. 1032, § 24, and no other evidence can be allowed to supply the defect. If twenty witnesses saw him sign or heard him acknowledge the signature, it will not supply the requirement of signing or acknowledgment, in the presence of the persons whom he selected as the legal witnesses of this solemn act. In this case the testator drew the whole will, including the attestation clause, which declares that it was signed in the presence of the

In the matter of the will of William G. Alpaugh.

witnesses. The witnesses testify that after Mr. Alpaugh's name was signed to the will he took it in his hand, declared it to be his last will, and asked them to sign it as witnesses. Neither of them testifies that he saw Alpaugh sign it, or that he acknowledged the signature to be his. Neither of them says that Alpaugh did not sign it in their presence. They were not asked directly whether they saw him sign. Each states such facts as he remembers, and says further that he does not recollect all that was done or said.

In such case, as in the case of the death of the witnesses, the attestation clause must be taken as true, and as proof of signing in their presence. Most especially in this case, where the attestation clause is in the handwriting of the testator, and shows that he knew the requirements of the law, the presumption will be that he saw to it that they were complied with. If the attesting witnesses had testified that they did not recollect whether the will was signed in their presence, the effect would be the same. If they had testified positively that the will was not signed in their presence, but was signed before they came, their evidence would not be overcome by the certificate in the attestation clause, but might be by convincing proof that it was actually signed in their pres

ence.

In this case the want of recollection, or the want of proof, is remedied by the presumption arising from the attestation clause, and is sufficient to warrant the determination of the Orphans Court in admitting the will to probate, as signed by the testator in the presence of the attesting witnesses.

The decree must be affirmed.