This is an appeal from a decree of the judge of .probate approving the will of Anna Palmer, late of East Bridgewater, deceased. The case is submitted upon a report of the testimony of the subscribing witnesses to the will. This testimony is so remarkably confused and contradictory, that it is very difficult to ascertain satisfactorily such facts as are essential to a decision of the case.

The general question, which arises on the testimony, is, whether the will was properly and legally executed, attested and subscribed. The first inquiry is, whether, in point of fact, the will was executed by the testatrix before it was attested and subscribed by the witnesses.

The physician who wrote the will says he wrote the name of the testatrix to the will, but does not say it was by her direction, and that he wrote his own name as a witness at the same time. This witness, after having stated that he wrote the name of the testatrix to the will, proceeds to say, that he called Mr. Holmes to come and witness the will, but cannot tell whether Mrs. Holmes was there or not. He then says that he read the will in the presence of Mr. Holmes but *437cannot be positive about Mrs. Holmes; that the testatrix then made her mark on the will, and acknowledged it to be her last will and testament; that he then took the will into another room, where it was signed by Mr. and Mrs. Holmes, the other two witnesses; that he then went back to the room where the testatrix was lying, and showed her the signatures of the witnesses, and she asked if that would stand law. Ho thinks Mr. Holmes was present when he showed the signatures of the witnesses, but cannot say whether Mrs. Holmes was there or not. According to the testimony of this witness, the will was executed by the testatrix and subscribed by him as a witness, before it was taken into the other room and subscribed by the other witnesses.

But Mrs. Holmes testifies distinctly, that it was after the will was subscribed by herself and husband, that the will was taken back to the bedside of the testatrix, there signed by her with her mark, and declared to be her last will and testament. According to this witness, it would seem clear, that the will was not executed by the testatrix, until after the witness and her husband subscribed their names as witnesses in another room out of the presence of the testatrix.

Mr. Holmes, the husband, the other subscribing witness, in his direct examination, testifies expressly that the will was subscribed by himself and wife as witnesses, before it was signed by the testatrix and declared by her to be her last will and testament, and that the name of the testatrix was not on the will when he signed it. In his cross examination, this witness distinctly declares that the name of the testatrix was on the will when he signed it.

The testimony, therefore, as to the fact whether the testatrix executed the will before it was attested by two of the witnesses, stands thus. One witness distinctly testifies, that she executed it before it was. signed by two of the witnesses. One other witness distinctly testifies, that she executed it after it was signed by these witnesses. And the other witness distinctly testifies both ways ; that her name was not on the will when he signed it; and that it was on the will when he signed it.

*438But it is not necessary to ascertain what was the fact in this particular, nor to determine what would be the legal effect of the fact, however it might be found, in order to come to a decision of the case. It is admitted and agreed, that the testatrix did not and could not see Mr. and Mrs. Holmes, two of the witnesses, sign the will, when they signed it as witnesses in the east room, it not being in her presence, view, or hearing. Now the statute expressly requires, that the will should be attested and subscribed in the presence of the testator by three or more competent witnesses. But it was maintained, that what took place after the witnesses put their names to the will was a sufficient subscribing in the presence of the testatrix. Whether or not, if the witnesses had acknowledged their signatures in the presence of the testatrix, that would have been a sufficient subscribing in her presence, it is not necessary to decide, as no such acknowledgment is shown by the facts. It would seem, that the two witnesses who subscribed in a room separate and apart from the testatrix, after they had put their names to the will out of her presence, went into her room.

Mr. Holmes says, “ I was not asked by any person, whether that was my signature. I do not recollect of saying that it was my signature, or any thing about it.” But he afterwards says, “ Miss Palmer asked, just before or just after he read the will, if I had signed. I told her I had.” The testimony of this witness is so confused and contradictory, that the fact which is the subject of inquiry is left in great doubt and uncertainty, so far as respects him. But as to Mrs. Holmes, it does not appear, that the slightest reference was made to her signature, in any way, when she was in the presence of the testatrix. Nothing was said or done, so far as is shown, in regard to her signature, when she was in the presence of the testatrix. There is therefore one at least of the three subscribing witnesses, who cannot be said, in any sense, to have attested and subscribed the will in the presence of the testatrix.

Upon the whole, the court is entirely satisfied that the will *439was not attested and subscribed in the presence of the testatrix, by three or more competent witnesses, as is expressly required by the statute.

The decree of the judge of probate is reversed, and the case remitted to the probate court for further proceedings.