The testimony of Edwin Lemist, if believed, establishes the fact that this instrument was executed by the testator, in the presence of himself and John Hunt as witnesses, under accompanying circumstances that present a case as to the two witnesses that would not have been questioned even before the late cases of Hogan v. Grosvenor, 10 Met. 54, and Osborn v. Cook, 11 Cush. 532. It is true that Hunt does not recollect all *113the facts stated by Lemist, and now declares that the testator did not actually sign it in his presence, and did not call it his will. But Hunt says that the testator asked him to witness the instrument, produced the instrument, laid it on Lemist’s table, and said, “ Put your name there,” directing him as to the place. Upon looking at the will and the place where he was directed to sign, it will be seen to have had the full attestation clause, 16 signed, sealed, published and delivered, by the abovenamed Thomas Tilden, to be his last will and testament, in the presence of us, who at his request and in his presence have hereunto subscribed our names as witnesses to the same.” Th< testimony of Lemist, being positive in its character, is rather tc be taken than the negative testimony of Hunt as to the testator’s not signing it in his presence, nor declaring, it to be his will; as the omission of Hunt to state this fact might result from mere failure of memory.

The only difficulty in the case arises upon the fact of a proper attestation by the third witness, John W. Lord. In reference to this witness, it is said that there was.no publication of the will by the testator, no actual signing in his presence, no direct acknowledgment that he had signed the paper, and no knowledge on the part of the witness whether the testator’s signature was on the paper at that time. But we have the fact that the testator came to the counting room of Lord with the paper in his hand, and said to the witness, “ I want you to witness this.” We have the further facts that he had previously signed the paper, and that the names of the other witnesses were already on the same, written under the attestation clause already quoted. Lord says he thinks the names of the witnesses were there. He must, of course, have seen them there, and the attestation clause was before him and to it he attached his signature. The testator came there from Lemist’s store, where" he had just said to the other witnesses, “ Witness my signature to my will.” He was the sole agent in procuring the attestation of the witnesses. He was the keeper of the instrument. It had already been signed by him, and all the circumstances tend to show, beyond any doubt, that he was fully *114cognizant of the nature and purposes of the instrument. It is true that the will was not in his handwriting; and therein the case differs from Hogan v. Grosvenor and Osborn v. Cook, above cited. But in the absence of this fact we have the other circumstances already alluded to, of the undoubted knowledge of the testator of the character of this paper, and we have the ancient form of an attesting clause, declaring it to be his last will and testament. So far as the fact is material that the testator was fully cognizant that this paper was his last will and testament, the evidence is quite sufficient to find this fact from. It was not necessary that the witness Lord should know the character of the instrument. It was enough that the testator had actually signed it, knowing it to be his last will and testament, and designing to have it duly executed as such, had so declared it, as testified by Lemist, and had called upon Lord to attest his execution of an instrument, whose character he well knew, by the request, “ I wish you to witness this,” and that thereupon the witness signed this attesting clause.

.This subject has been much considered, and the authorities cited, in the cases already referred to, and in Dewey v. Dewey, 1 Met. 349, and Nickerson v. Buck, 12 Cush. 339, and it is only necessary here to refer to those eases. In the opinion of the court, the evidence was sufficient to authorize finding this instrument to have been duly signed by the testator, and duly attested as his last will and testament.

Decree of the court of probate affirmed.