Craig v. Trotter, 252 Ill. 228, it was held that it was not necessary that a testator by his own words acknowledge his signature or request the attestation of the witnesses, and if persons are brought to him by a third party with a statement in his presence that they have been brought for the purpose of witnessing his will, and he then executes the will, which is signed by them as witnesses in his presence, his assent may be inferred unless there is other evidence leading to a different conclusion. In this case, pursuant to his request these witnesses came to the bedside of the testator, and in his immediate presence the first one, Reyburn, was handed the will by Fienberg and he was requested to witness the will. All this was in the presence and hearing of the testator and must have been with his knowledge and approbation. The other two witnesses came in right after Reyburn and also signed the will as witnesses. Reyburn started to leave the testator's presence before Kelley and Cunningham signed, but the two latter signed as witnesses in the presence of each other. The will is partly printed and partly written, and the entire will, the signature of the testator, the attestation clause and the signatures of the subscribing witnesses are on one side of a single sheet of paper. Each witness had it in his hands and looked at it before subscribing his name as a witness thereto. It is not questioned that they saw the signature of the testator, which is just above the attestation clause, and understood that it was his will that they were signing as witnesses. The attestation clause regularly recites that the will was on the date thereof signed, published and declared by the testator, G. W. Jolly, to be his last will and testament in the presence of the witnesses, who at his request have subscribed their names as witnesses thereto in his presence and in the presence of each other.

In O'Brien v. Estate of Rhembe, 269 Ill. 592, we held that where a will contains a full and formal attestation clause and the signature to the will is shown to be in the

handwriting of the testatrix, and the subscribing witnesses went at the request of the testatrix to witness her will and signed as witnesses a paper they understood was the will, the fact that they did not remember seeing the testatrix sign the will or that she acknowledged it to be her act and deed does not preclude the probate of the will. To the same effect are Thompson v. Owen, 174 Ill. 229, and Gould v. Chicago Theological Seminary, 189 id. 282. Of course, a will, to be valid under the statute, must, among other things, be signed by the testator in the presence of the subscribing witnesses or he must acknowledge it to be his act and deed. An attestation clause in due form signed by the witnesses is entitled to weight, according to all the authorities, even though the witnesses forget the circumstances or the facts set out in the attestation clause or subsequently testify differently. In re Estate of Kohley, 200 Ill. 189.

We think, under the circumstances of this case, there was a sufficient acknowledgment by the testator that the instrument in question was his will. As to whether the will was witnessed in the presence of the testator, as a matter of fact the witnesses were in his immediate presence, within a few feet. They were at the head of his cot, which was an iron hospital bed, with the head to the west and near a window. The cot occupied by the testator was open, with rods at the head, and there was no curtain or screen or anything on that side to obstruct his view of the witnesses. The question to be determined is whether the witnesses were in his presence, so that he knew what they were doing. In Calkins v. Calkins, supra, on page 464 of the opinion it is said: "The authorities have always given to the word 'presence' the meaning of conscious presence, so that the act of attestation may be within the actual personal knowledge of the testator, and in Witt v. Gardiner, 158 Ill. 176, it was stated that the test of presence of the testator is contiguity, with an uninterrupted view between the testator and the subscribing witnesses, as the indispensable ele

ment to the physical signing in the testator's presence. It is not necessary that the act of attestation be performed in the same room, if it takes place within the testator's range of vision where he can see the signing, considèring his position and the state of his health at the time. It is still in his presence although he may turn and look away or choose not to look at the act. On the other hand, no mere contiguity of the witnesses will constitute presence if the position of the testator is such that he cannot possibly see them sign. An attestation is not in the presence of the testator, although the witnesses are in the same room and close to him, if some material obstacle prevents him from knowing of his own knowledge or perceiving by his senses the act of attestation. The rule so stated was re-affirmed in Drury v. Connell, 177 Ill. 43." In Witt v. Gardiner, 158 Ill. 176, it is said on page 181 of the opinion: "What constitutes the 'presence' of a testator or testatrix, within the meaning of the statute, has been made the subject of much discussion by the courts, but the rule supported by the weight of authority may be stated substantially in the language of a distinguished modern law writer, as follows: Contiguity, with an uninterrupted view between testator and subscribing witnesses, is the indispensable element to the physical signing in the testator's presence. The subscription is not invalidated by not having been performed in the same room, or even in the same house, provided it took place within the testator's range of vision, as in case where witnesses left the testator, who lay in bed in one room, and subscribed their names at a table in another room opposite and in sight through a passage, the doors being thrown open; or where a lobby intervened, but the testator might have seen the subscription made in a gallery through the lobby and a broken glass window; or where the testatrix sat in her carriage, and the will was attested in the attorney's office but not out of her sight. In all such cases the attestation is held good, on the theory that the testator

might at least have seen the signing, considering his position and the state of his health at the time of the transaction; and it is deemed immaterial that he did not see when he might have done so, for the act, being done in his presence, could not have been vitiated by his turning and looking away. On the other hand, no mere contiguity to the witnesses will constitute à 'presence' with the act if the testator's position be such that he cannot possibly see them sign, as where, for instance, he occupies his bed chamber and the witnesses subscribe in an outer hall, where they are necessarily hidden from sight by an intervening flight of stairs, or where his position, which he cannot readily change, is such that the witnesses are in reality out of sight."

The judge who tried the case in the circuit court had the advantage of seeing the witnesses and hearing them testify, which advantage we do not possess.

On consideration of the entire evidence in the record we are unable to say that the judgment of the circuit court admitting the will to probate was wrong, and it will be affirmed.

Judgment affirmed.

(No. 11400.-Judgment affirmed.)

THE PEOPLE ex rel. J. H. Snelling et al. Appellants, vs. O. J. ROBERTS et al. Appellees.

Opinion filed June 21, 1917-Rehearing denied October 5, 1917.

QUO WARRANTO-affidavit in support of petition for quo warranto cannot be based on belief. An affidavit in support of a petition for an information in the nature of quo warranto attacking the organization of a high school district must be positive and be made by one knowing the facts, and it cannot rest on the information and belief of the affiant.

APPEAL from the Circuit Court of Ford county; the Hon. T. M. HARRIS, Judge, presiding.

F. M. THOMPSON, State's Attorney, and SCHNEIDER & SCHNEIDER, for appellants.

KERR & LINDLEY, for appellees.

Mr. CHIEF JUSTICE CARTER delivered the opinion of the

court:

At the December term, 1916, of the Ford county circuit court, leave was asked to file an information in the nature of a quo warranto as to the organization of a high school district in said county. After a hearing on the affidavits presented by both parties the court refused the leave, and this appeal was taken.

Numerous questions have been raised in the briefs, but we deem it necessary to consider only one,—that is, the insufficiency of the affidavit filed in support of the petition. This affidavit was made by J. H. Snelling, and it is clear that it was based, in part, on information and belief. The affidavit itself so states in terms. This court in People v. Healy, 230 Ill. 280, with reference to this question said (p. 297): "The affidavit or affidavits accompanying the petition must be full and positive and must be made by a person or persons knowing the facts, and be drawn in such manner as that perjury may be assigned thereon if any material allegation contained therein is false." In Cain v. Brown, III Mich. 657, it is stated that this rule is inflexible. "The affidavits upon which the application is based should contain positive allegations of the facts upon which the prosecutor seeks to assail the title of the respondent, and the courts are averse to granting leave to file the information upon affidavits which rest only upon the belief of the affiant." (High on Ex. Legal Remedies,—3d ed.—sec. 733, and cases there cited.) This affidavit does not conform to this requirement, and for this reason, if for no other, the trial court rightly refused leave to file the information.

The judgment of the circuit court will therefore be affirmed. Judgment affirmed.