at this term delivered the opinion of the couriv This action of ejectment was instituted in the court below for an undivided third part of a tract of land called What you Please. Defence was taken upon title. The lessor of th® plaintiff claiming as heir at law of Thomas Jenkins, and the defendant under an instrument of writing alleged to be his last will and testament; and the sole question which appears to have arisen in the court-below, related to the due execution of said will, according to the formalities prescribed by the statute of *67frauds and perjuries. Upon this point three bills of exception appear to have been taken in the court below, only the first and third of which are before this court, for their review and adjudication, upon the appeal prosecuted by the appellant. The opinion contained in the second bill of exceptions is not appealed from, and is only before this court by the agreement of the parties, as furnishing the testimony upon which the opinion of the court was prayed and given in the third bill of exceptions. The whole of the testimony which went to the jury upon the trial of this case, was admitted by the consent of the parties, and such consent obviates any objection which might otherwise have been made to it as being exceptionable in point of law. This court are of opinion, that the court below did right in refusing the prayer of the plaintiff, that the defendant was precluded from giving evidence to prove the due execution of the will. The conclusion of law deduced by the court from the facts so given in evidence, that the same were prima facie evidence that the will was not legally executed, is believed by this court to be correct.

It is the opinion of this court, that there is no error in the opinion of the court below expressed in the third bill of exceptions, because the evidence, so far from warranting a presumption that the formalities of the law had been complied with, in reference to the execution of last wills and testaments, furnished very strong grounds from which a contrary inference might be drawn. It is true it is not essential that a testator should actually see the witnesses attest his will, but it is necessary that he should be in a situation which would give him the capacity of doing so if he should desire it. Russell & Lux vs. Falls, 3 Harr. & M‘Hen. 457.

JUDGMENT ARRIRMED.