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 has 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 proof of his hand-writing, though this must be accompanied by positive and satisfactory proof, that he is dead. Thus in Bishop v. Burton,(7) the plaintiff being put to prove the will, 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 v. Atkinson,(0) an objection was made for the defendant, that one of the witnesses being beyond sea, and the others not having sworn that the testator acknowledged his handwriting to the third, who was abroad, and there being no proof about him, the will could not be established on the other side it was contended, that the same credit was to be given to his handwriting as 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."

(n) Comyns' Rep, Bishop. Burton, in Searl. () 1 Vez. 459.

If one of the witnesses be dead, proof of his handwriting may

be read.

Whether the hand writing may be proved of a witness beyond

sea.

*[ 446 ]

In the case of Lord Carrington v. Payne,() 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 all the witnesses, although the *[447] practice has been to examine all.

The hand

writing of a

since the

*This rule has been relaxed in other instances, where, to have witness who rigidly adhered to it, would have imposed impossibilities upon persons coming into equity to establish these instruments. As, subscription where a witness to a will of real estate had since become insane, insane, may proof of the hand-writing of such witness was allowed.(r) And be proved.

has become

in a very late case at the Rolls, proof even of the 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, case of an old will, where that he did not see how a will could be distinguished from a deed as to this point; only that the former, not having effect till the death, wanted a kind of authentication which the other had. That was from the nature of the subject. But he thought the proof sufficient in that case; for in a late case(162) in the court of King's Bench, an inquiry of just the same kind was held sufficient, which excluded the question. In that case they had made all inquiry, and could hear nothing of the witness.

no account

can be given of a witness, proof of the hand-writing may be dispensed with.

(p) 5 Vez. jun. 411. (q) 2 Bro. C. C. 504. (r) Bennet v. Taylor, 9 Vez. jun. 381.

(162) Cunliff v. Sefton, 2 East. 183, where, in an action upon a bond, evidence was offered that diligent inquiry had been made after one of

*PART VII.

WITH respect to personal estate, except the will be made and proved according to the forms required by the 19th, 20th, and 21st sections of the statute, to validate the nuncupative testament, or where it is the case of soldiers in actual military ser 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. Swinburn seems to have considered it necessary, indeed, that a testament of chattels should be published in the presence of two sufficient witnesses;(s) and Bracton(t) 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.(u) 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)

(t) Lib. 2. c. 26.

(x) Limbery v. Mason and Hide,

(s) Vid. Swinb. on Wills, pt. 1. sect. 3. (u) Godolp. O. L. p. 1. c. 21. 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 witness, who had since become interested as administratrix to the obligee, and was a plaintiff on the record.

Of the re

quisites to the validity of a personal testament.

↑ [449]

The proof of the will may be in two forms, of which one is 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 ætate, 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 proof of the hand-writing "only, but it ought to be by the eviOf the gene- dence of such as have seen him write ;(b) and though this eviral necessity dence ought, in general, to be given by two witnesses, yet, if for two wit

* [ 450]

nesses to establish a fact in the

Ecclesiastical Courts.

(y) Burn. Eccl. L. 208. (z) Godolph. O. L. 62. vol. 1. (a) 4 Burn.

Eccl. L. 207.

jun. 438.

(b) See the case of Eagleton. Kingston, 8 Vez.

there be one subscribing witness, who appears to attest the fact of the identity of the will, the testimony of a single witness is said to be sufficient. And where the will has been wholly written by the testator, and there are corroborating circumstances, the clear testimony of one witness has prevailed in the spiritual court. The general necessity for the evidence of two witnesses is borrowed from the Roman law; the maxim of which is, that one witness alone cannot be heard, or, in other words, is no witness at all.(c)" Unius responsio testis omnino non audiatur.”(163)

We have seen, that notwithstanding the rule of the Roman law, that nemo testis esse debet in propria causa, legataries were permitted to give evidence in support of a will, upon the distinction between particular and universal successors; but by the practice of the Ecclesiastical Courts of this kingdom, no legatee can be received to give his testimony to establish a will of personal estate, until his interest has been removed by his receipt of the value of his legacy, or he has renounced it and discharged the

executor.

of the 'form of the testament.

*

But as to the form of the instrument itself, the Ecclesiastical Courts are not scrupulous. A memorandum or scrap *of paper, written(d) by a person in contemplation of death, and with a [451] design to make it operative after that event, may be proved in that court as testamentary, and, if so received, it seems a court of equity will support it.(e) A string of examples might be Determinacited to illustrate this observation; many were produced in the tions of the case of Limbery and Mason v. Hyde, in Comyns' Reports ;(f) cal Courts among which, that of Loveday v. Claridge is strong to the pur- on this subject. pose. The testator intending to make his will, pulled a paper

Ecclesiasti

(c) See the case of Thwaites v. Smith, 1 P. Wms, 13. Coxe v. Basset, 3 Vez. jun. 158. (e) Comyns, 452.

(d) Vid. (f) Vid.

Downing v. Townsend, Ambler 280, 592.

(163) Cod. 4, 20, 9. Where the Ecclesiastical Court proceeds in a matter merely spiritual, or confined to their own jurisdiction, no prohibition lies, if their proceedings are contrary to common law; as if they refuse the testimony of one witness. But if they disallow the proof of a temporal matter, by one witness, though such temporal matter be incident to a matter within their jurisdiction, a prohibition lies from the temporal courts. 1 Show. 158, 172. Shatter v. Friend; and see H. H. C. L. 5th edit. and the note (q) by the Editor.