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all the world." It is remarkable, that in the much considered < of Bent v. Baker, which was determined three years before that of Adams v. Lingard, Lord Kenyon expressed his entire acquiescence in the distinction as to this point, between negotiable instruments, and deeds and wills. Of* the proof The reader has been shown above, that the testimony of one
to"ta„bll8h a of the three witnesses is enough to prove a will of lands, in a will of lands _ , .,
in courts of court of common law. He will find the same rule of evidence
equity. lald (|own in eariy cases, with respect to the mode of establish
ing a will in the courts of equity. Thus in the case of Longford v. Eyre,(0 Lord Macclesfield makes the following observation: "The proper way of examining a witness to prove a will as to lands, is, that the witness should not only prove the executing the will by the testator, and his own subscribing it in the presence of the testator, but likewise, that the rest of the witnesses subscribed their names in the presence of the testator; and then one witness proves the full execution of the will, since he proves that the testator executed it, and likewise, that the three witThe settled nesses subscribed it in his presence. But in the case of Townthat a?/*'the send v. ^ves'("1^ which came on about twenty-five years afterwitnesses, if wards in the Court of Chancery, where the bill was preferred ermine1? ^ le£atees, whose legacies were charged on the real estate, to have the will established, the rule was peremptorily laid down, that Ai.l the witnesses, if living, must be examined, to prove a will of lands. Thus, also, Lord Camden, in the above cited case of Hindon v. Kersey, in speaking first of the method [ 445 ] OI' proof in a court of common law, says, u one *witness is sufficient to prove what all the three have attested; and though that witness must be a subscriber, yet that is owing to the general common law rule, that where a witness has subscribed an instrument, he must always be produced, because he is the best evidence. This we see in common experience; for, after the first witness has been examined, the will is always read." But the same judge speaking afterwards of the course of the Court of Chancery in this respect, expresses himself thus: "Sanity is the great fact which the witness has to speak to, when he comes to prove the attestation; and that is the true reason why a will can never be proved as an exhibit viva voct
in Chancery, though a deed may; for there must be liberty to cross-examine to this fact of sanity. From the same consideration it is become the invariable practice of that Court, never to establish a will, unless all the witnesses are examined; because the heir ha6 a right to proof of sanity from every one of those, whom the statute has placed about his ancestor."
But if one of the witnesses be dead, a will may be read, on If one of the proof of his hand-writing, though this must be accompanied J^prooflof by positive and satisfactory proof, that he is dead. Thus in his handBishop v. Burton,(n) the plaintiff being put to prove the will, J^TM!^ ma* the proof was of the hands of the devisor, and of two of the subscribing witnesses, who were proved to be dead; and as to J. B. the third subscribing witness, the witness deposed, that he was credibly informed in the country where he lived, and believed it to be true, that he died two years before, and believed his name subscribed was his proper hand-writing. But the Court was of opinion, that that was not sufficient proof to have the will read in evidence.
In Grayson x,. Atkinson,(o) an objection was made for the de- Whether the fendant, that one of the witnesses being beyond sea, and the Jn"^fbTprov' others not having sworn that the testator acknowledged his hand- ed of a witwriting to the third, who was abroad, and there 'being no proof "|*s ^ about him, the will could not be established: on the other side it • r 446 .j was contended, that the same credit was to be given to his handWriting at if dead. But the Lord Chancellor Hardwicke doubted thereof, and said, " he did not know that it had been determined, that the same credit was to be given to the hand-writing of a witness beyond sea, as if dead, because it was not necessary to presume the impossibility of getting at him, and he was apprehensive fraud might be used. It not being proved that the testator published his will in the presence of the other witness, but .only of those examined, and that the other witness subscribed in their presence, it stood on the proof of the attestation. If the witness was dead, it might possibly be sufficient. That was the act of God, and therefore the court gave credit to his hand-writing. But in this case you may have a commission to examine the witness beyond sea."
In the case of Lord Carrington v. Payne,(/0 however, a question was made, whether one of the witnesses to the will being abroad, in Jamaica, it was necessary to send out a commission to examine him. His hand-writing was proved; and the other two witnesses were examined. Lord Alvanley, then the Master of the Rolls, held, that it was not necessary to have his examination; but that it was the same as if he was dead. But his Honour seemed to found this resolution on the submission of the heir, who, he observed, did not make a point of it. He mentioned a case, however, of Mr. Fitzherbert, where one of the witnesses being in India, it was held not necessary, but very dangerous, to send the original will abroad. And where, in another case, before Lord Chancellor Thurlow, it was urged that one of the witnesses to the will was abroad, his Lordship said,(y) he doubted whether the rule had ever been laid down so largely as, that the will could not be proved, without examining ail the witnesses, although the • [ 447 J> practice has been to examine all.
The hand- *This rule has been relaxed in other instances, where, to have witness who rif?ldly adhered to it, would have imposed impossibilities upon tince the persons coming into equity to establish these instruments. As, ba^become wnere a witness to a will of real estate had since become insane, insane, may proof of the hand-wriiing of such witness was allowed^r) And be proved. -m ft very late case ^ ^ j^n^ proof even of tne hand-writing
was dispensed with, in the case of an old will, which appeared by the date to have been made 30 years before, the testator having been dead above 20 years, and no account being to be obtained of one of the subscribing witnesses. The hand-writing And in the of two of the witnesses was proved. And his Honour observed, wTu,"'where tnat ne ^ not now a collld oe distinguished from a deed no account as to this point; only that the former, not having effect till the of" witness" death, wanted a kind of authentication which the other had.
proof of the That wus from the nature of the subject. But he thought the hand-writ- .. . . , , .
ing may be proof sufhcient in that case; for in a late case(163) in the court
dispensed of King's Bench, an inquiry of just the same kind was held suf. with. .
ficient, which excluded the question. In that case they had made all inquiry, and could hear nothing of the witness.
(/0 5 Vez. jun. 411. (?) 2 Bro. C. C. 5Q4. (r) Bennet e. Taylor, 9 Vez. jun. 381.
(16-') CunliflV Sefton, 2 East. 183, where, in an action upon a bond, evidence was ottered that diligent inquiry had been made after one of •PART VII.
WITH respect to personal estate, except the will be made Of the reand proved according to the forms required by the 19th, 20th, ^""viatcUty and 21st sections of the statute, to validate the nuncupative tes- of a persontament, or where it is the case of soldiers in actual military ser- testament, vice, (who, by virtue of the 23d section of the said statute, may still make nuncupative wills without the necessity of observing the forms to which nuncupative testaments are subjected by the preceding clauses) all testamentary dispositions thereof must, since the statute of frauds, be in writing. The Ecclesiastical Courts, to whose jurisdiction the establishment of personal testaments appertain, require no ceremonies in the publication thereof, or the subscription of any witnesses to attest the same. Swinbum seems to have considered it necessary, indeed, that a testament of chattels should be published in the presence of two sufficient witnesses;(») and Bracton(f) appears to have held the same opinion; or rather, according to Sir William Blackstone, to have copied implicitly the rule of the civil law. For it is not to be doubted, but, that a will of personal estate, if written in the testator's own hand, though it has neither his name nor seal to it, nor witnesses present at its publication, is effectual, provided the hand-writing can be sufficiently proved.(a) And though it be written by another person, by the testator's direction, without even having been signed by the testator, if it can be shown to have been made according to such instructions, and to have received the approbation of the testator, it will be effectual to pass the personal estate.(x)
(j) Vid. Swinb. on Wills, pt. 1. sect. 3. (0 Lib. 2. c. 26.
(u) Godolp. O. L. p. 1. c. 21. (x) Limbery «. Mason and Hide,
Comyns, 452. Gilb. Rep. 260.
the subscribing; witnesses, at the places of residence of the obligor and obligee, and that no account could be obtained of such a person, who he was, where he lived, or of any circumstance relating to him, it was held sufficient to let in proof of the hand-writing of the other subscribing Vttness, who had since become interested as administratrix to the obligee, and was a plaintiff on the record.
The proof of the will may be in two forms, of which one is
t [ 449 ] called the vulgar or common, the other is termed the •solemn
Of proving form or form of law. If the will be not contested, the executor or
a will in the administrator durante minore tetatc, or durante absentia, or cum tescommon and . ...
solemn form, tamento annexo, may prove it by his own oath, or, as it is said,
in some dioceses in York, with the additional oath of one witness, before the ordinary or his surrogate. But if the validity of the will be disputed, it then becomes necessary to prove and establish the will in the solemn way, or as Swinburn expresses it, in form of law; that is, per testes, in the presence of such persons as would be interested if the deceased had died intestate. Two witnesses must then be sworn and examined upon interrogatories administered by the adverse party. Between which two forms of proving a will, there is a substantial difference of effect; for after an informal proof the executor may be compelled again to prove the will in due form of law, which may be inconvenient if the witnesses are dead in the mean time. The executor, may, therefore, if he please, for greater safety, if he himself have an interest in the will, elect to have the will proved in the more solemn form,(y) and in such case he must cite the persons who would be interested under an intestacy, to be present at the probation thereof. If the will is only proved in the common form, it may, at any time within 30 years be disputed,(z) but if the solemn form be pursued, and no adverse proceedings are instituted within the time limited for appeals, the will is liable to no future controversy .(a)
When a will is proved by the probation of the more formal or solemn kind above alluded to, the civil law rule of establishing all proof upon the testimony of two witnesses, is followed in our Ecclesiastical Courts. And such witnesses must be able, at least, to depose, that the testator declared the writing produced to be his last will and testament, unless where the will or codicil was written by the testator himself, in which case, as has been above observed, the validity thereof may be established upon • [ 450 ] proof of the hand-writing 'only, but it ought to be by the eviOf the gene- dence of such as have seen him write and though this evi
ral necessity dence ought, in general, to be given by two witnesses, yet, if tor two wit
"staWish a 0) Burn' Eccl L. m (*) GoilolPh. O. L. 62. vol. 1. (a) 4 Bum.
fact in the Eccl. L. 207. (A) See the case of Eagleton v. Kingston, 8 Vez,
Ecclesiasti- 433. cal Courts.