Where it is necessary that records should be produced at any place out of the Court of Chancery, the Clerk of Records and Writs must attend with them, and the 5th Order of 1842 provides for the payment of his costs in such a case.1 The documents which have been before enumerated as requiring no evidence to prove them, are all, either in a greater or less degree, public documents: private documents, which are thirty years old from the time of their date, also prove themselves.2 This rule applies, generally, to deeds concerning lands, and to bonds, receipts, letters, and all other writings, the execution of which need not be proved; provided they have been so acted upon, or brought from such a place, as to afford a reasonable presumption that they were honestly and fairly obtained and preserved for use, and are free from suspicion of dishonesty. Lord Chief Baron Gilbert, however, upon this point, says, that "if possession hath not gone along with a deed, some account ought to be given of the deed, because the presumption fails, where there is no possession"; and he adds a caution, that "if there is any blemish in an ancient deed, it ought to be regularly proved, or where it imports a fraud; as where a man conveys a reversion to one, and afterwards conveys it to another." 5 The rule of computing the thirty years from the date of a deed is equally applicable to a will. Some doubt appears formerly to Phil. & Amos on Evid. 652. See also, as to letters, Fenwick v. Reed, Mad. & Geld. 8. * Gilb. on Evid. 102; Gresley Eq. Ev. (Am. ed.) 124, 125; 1 Phil. Ev. (Cowen & Hill's ed. 1839,) 477, note, 903, in 2 ib. 1310 et seq. and cases cited; 1 Greenl. Ev. § 21, 570, and cases cited; M'Kenire v. Fraser, 9 Sumner's Vesey, 5, note (a). It is not necessary to call the subscribing witnesses, though they be living. Jackson v. Christman, 4 Wendell, 277, 282, 283; Fetherly v. Waggoner, 11 Wendell, 603; 1 Greenl. Ev. § 21, 570; Jackson v. Blanshan, 3 John. 292; Winn v. Patterson, 9 Peters, 674, 675; Bennet v. Runyon, 4 Dana, 422, 424; Cook v. Torton, 6 Dana, 110; Thurston v. Masterton, 9 Dana, 233; Hinde v. Vattier, 1 M'Lean, 115; Northop v. Wright, 24 Wendell, 221; 1 Phil. Ev. (Cowen & Hill's ed. 1839,) 478. * Gilb on Evid. 102; 1 Phil. Ev. (Cowen & Hill's ed. 1839,) 478, note, 906, in 3 ib. 1317, 1318; 1 Greenl. Ev. § 21, 570; Gresley Eq. Ev. (Am. ed.) 124, 125. Man v. Ricketts, 7 Beav. 93; Doe v. Burdett, 4 Ad. & E. 1. have been entertained on this point, on the ground that deeds take effect from their execution, but wills from the death of the testator. In Rancliff v. Parkins,2 Lord Eldon observes, "that, in a Court of Law, a will thirty years old, if possession has gone under it, and sometimes without possession (but always with possession), if the signing be sufficiently recorded, proves itself; but if the signing be not sufficiently recorded, it would be a question, whether the age proves its validity; and then possession under the will, and claiming and dealing with the property as if it had passed under the will, are cogent reasons for proving the due signing of the will, though it be not recorded." 3 It appears to be doubted, whether the seal of a Court or corporation is within the rule as to thirty years; and in Rex v. The Inhabitants of Barthwick, Lord Tenterden said, "that it might be argued that it was not within the principle of the rule, because, although the witnesses to a private deed, or persons acquainted with a private seal, may be supposed to be dead, or not capable of being accounted for, after such a lapse of time; yet the seals of Courts and of corporations, being of a permanent character, may be proved by persons at any distance of time from the date of the instrument to which they are affixed." 5 SECTION II. Of Documentary Evidence — which does not prove itself. HAVING pointed out the species of documentary proofs which may be used in Courts of Equity, without the aid of any other evidence to authenticate them, or which, in other words, "prove themselves"; the next subject for consideration is the nature of the proofs requisite to enable a party to make use of documents which do not come under the same description. The rules upon 1 Phil. & Amos on Evid. 652; M'Kenire v. Fraser, 9 Ves. 5. 2 6 Dowl. P. C. 202. 31 Phil. Ev. (Cowen & Hill's ed. 1839,) 503; 1 Greenl. Ev. § 21, and cases in notes, § 570, and note; Jackson v. Blanshan, 3 John. 392; Doe v. Deakin, 3 C. & P. 402; Doe v. Walley, 8 B. & C. 22. * 2 Barn. & Adol. 648. Phil. & Amos on Evid. 652; 1 Greenl. Ev. § 570. this subject have been much simplified of late, and are in general the same in Equity as at Common Law, and will be found more fully set forth in any Treatise upon the Law of Evidence. With respect to the cases in which different rules prevail, in Courts of Equity, from those which are adopted at Law, the most important are those of wills devising real estates.1 At Law, it is sufficient to examine one witness to prove a will, if he can prove the due execution of it, unless it is impeached ; but, in Equity, in order to establish the will against the heir, all the witnesses must be examined. This rule was affirmed by Bootle v. Blundell. 2 1 The Courts of Probate in Massachusetts have complete jurisdiction over the probate of wills, of both real and personal estate, and their decrees are conclusive upon all parties, and not re-examinable in any other Court. Tompkins v. Tompkins, 1 Story C. C. 547. See Osgood v. Breed, 12 Mass. 525, 533, 534; Laughton v. Atkins, 1 Pick. 535, 547, 548, 549. So in Connecticut. Bush v. Sheldon, 1 Day, 170; Brown v. Lannan, 1 Conn. 476. So in Rhode Island. Tompkins v. Tompkins, 1 Story C. C. 547. So in New Hampshire. Poplin v. Hawke, 8 New Hamp. 124. So in Ohio. Bailey v. Bailey, 8 Ohio, 239. See as to Kentucky, Robertson v. Barbour, 6 Monroe, 527; Case of Wells's Will, 5 Litt. 273. In North Carolina, said to be prima facie evidence. Stanley v. Kean, Taylor, 73. Illinois, see Robertson v. Barbour, 6 Monroe, 527, 528. Alabama, see Tarver v. Tarver, 9 Peters, 174. It is not necessary in Virginia that a will should be proved in a Court of Probate in order to give it validity as a will at law. Bogwell v. Elliot, 2 Rand, 196. As to New York, see Dubois v. Dubois, 6 Cowen, 494; 2 Rev. St. 57, § 7, ib. 58, § 15. See further on this subject, 1 Jarman on Wills, (Perkins's ed.) 23, note (2), and cases cited. * Seton on Decrees, cites Peake's Evid. 401; 2 Greenl. Ev. § 694; Jackson v. La Grange, 19 John. 386; Dan v. Brown, 4 Cowen, 483; Jackson v. Betts, 6 Cowen, 377; Turnipseed v. Hawkins, 1 M'Cord, 272. In Pennsylvania, two witnesses are required in proof of every testamentary writing, whether in the general probate, before the Register of Wills, or upon the trial of an issue at common law; and each witness must separately depose to all the facts necessary to complete the chain of evidence, so that no link may depend upon the credibility of but one. Lewis v. Maris, 1 Dall. 278; Hock v. Hock, 4 Serg. & R. 47. And if there are three witnesses, and the proof is fully made by two only, it is enough without calling the third. Jackson v. Vandyke, 1 Cox, 28; Fox v. Evans, 3 Yeates, 506. But if one or both witnesses are dead, the will may be proved by the usual secondary evidence. Miller v. Caruthers, 1 Serg. & R. 205. 3 * Bootle v. Blundell, 19 Ves. 505; Coop. 137, S. C. See also Ogle v. Cook, 1 Ves. 177; Townshend v. Ives, 1 Wils. 216; Bullen v. Michel, 2 Pri. 491; 2 Greenl. Ev. § 694, and note. Any person interested in the estate of the testator, may insist upon the production of all the subscribing witnesses to a will, at the probate thereof, if they are living, and subject to the process of the Court. Chase v. Lincoln, 3 Mass. 236. If it be impossible to procure any one of the witnesses, or he has become incompetent, the Court will proceed without him ex This rule, although general, admits of necessary exceptions, and perhaps does not apply where the will is not wholly, but only partially, in question.1 The rule also does not apply in cases where one of the witnesses is dead,2 or is abroad; in which cases proof of his handwriting has been held sufficient. It will be recollected that it is now a common practice to direct the trusts of a will to be carried into execution without establishing it. Where a witness has become insane, or has not been heard of for many years, and cannot be found, his evidence has been dispensed with.5 It is also necessary, in Equity, where the object of the suit is to establish a will against the heir, to prove the sanity of the testator.6 Although, where a will is to be established against an heir, the general rule, in Equity, is, that it must be proved by all the witnesses, or by producing evidence of their death and handwriting, &c.; the same rule does not apply when proof of the will is required for other purposes, i. e. merely to enable it to be read as a legal instrument; in such cases, one witness to prove it is sufficient. So, also, if the object of the suit is only to appoint new trustees to execute the trust of the will, one witness will be all that is required.8 It is to be remarked, that however clearly a will may be proved in the suit, the heir-at-law may still claim, as a right, an issue denecessitate rei, and resort to the next best evidence of which the case will admit. Ib.; Sears v. Bellingham, 12 Mass. 358; Brown v. Wood, 17 Mass. 68. See Swift v. Wiley, 1 B. Monroe, 116; Brown v. Chambers, Hayes, Exch. 597. See Powell v. Cleaver, 2 Bro. C. C. (Perkins's ed.) 504, note (b); Lord Carrington v. Payne, 5 Sumner's Vesey, 404, Perkins's note (a), and cases cited. 1 Per Lord Eldon in Bootle v. Blundell, 19 Ves. 505. 2 Ibid. • Lord Carrington v. Payne, 5 Ves. 411. See also Billing v. Brooksbank, cited 19 Ves. 505; Fitzherbert v. Fitzherbert, 4 Bro. C. C. 231; and Grayson v. Atkinson, 2 Ves. 454, where it was held, that a commission should have been sent to examine the witness abroad; but the rule in Carrington v. Payne seems to be the one now, acted upon. Seton on Decrees, 83. Bernett v. Taylor, 9 Ves. 381. James v. Parnell, Turn. & Russ. 417; M'Kenire v. Fraser, 9 Ves. 5. • Harris v. Ingledew, 3 P. Wms. 93; Wallis v. Hodgeson, 2 Atk. 56; Seton on Decrees, 83; Binfield v. Lambert, 1 Dick. 337; Bird v. Butler, ib. notis ; Fitzherbert v. Fitzherbert, 4 Bro. C. C. 231; Wood v. Stane, 8 Pri. 615; ante, 848, 849. Concannon v. Cruise, 2 Moll. 332.· 8 Wood v. Stane, 8 Pri. 613. visavit vel non; and that the rule that all the witnesses must be examined, extends also to the trial of the issue before the jury.2 In Tatham v. Wright, however, where the bill was not filed by the devisee to establish the will, but by the heir to set it aside, the defendant called one witness, and produced the other two, offering them to the plaintiff to call and examine them, which he declined, not wishing to make them his own witnesses; upon a motion for a new trial, which was twice argued, once before Sir John Leach, M. R., and secondly before Lord Brougham, C., assisted by Lord Chief Justice Tindal, and Lord Lyndhurst, C. B., the cause was held to have been sufficiently tried.* With respect to wills of copyhold estates, it seems that it is not the practice to establish them against the heir-at-law. What will be a sufficient proof of them to induce the Court to act upon them when their validity is not admitted by the heir-at-law, does not seem quite clear. Lord Eldon, however, took occasion to observe, that according to the old practice of the Court, the fact of the probate of a will by the Ecclesiastical Court was not evidence that copyhold estates would pass by it.6 Whilst we are upon the subject of proving wills, it is as well to mention a practice which has prevailed in Courts of Equity, for compelling the production of the original wills, where they have been deposited in the registry of an Ecclesiastical Court. The Court, in the case of wills, has made an order upon the officer of the Ecclesiastical Court to deliver the original will to the solicitor in the cause, upon his giving security (to be approved by the Judge of the Court) to return it safe and undefaced within a particular time. In Fauquier v. Tynte, Lord Eldon seemed at a loss 1 Pemberton v. Pemberton, 11 Ves. 53. * Bootle v. Blundell, 19 Ves. 505; Coop. 137, S. C. * 2 Russ. & M. 1. Gresley Eq. Ev. (Am. ed.) 123, 124; 2 Greenl. Ev. § 693. • Archer v. Slater, 10 Sim. 624; 11 Sim. 507, S. C. Jervaise v. Duke of Northumberland, 1 J. & W. 570. - 6 Ves. 135; Ford v. 'Morse v. Roach, 2 Strange, 961; 1 Dick. 65, S. C.; Frederic v. Aynscombe, 1 Atk. 627; Pierce v. Watkin, 2 Dick. 485; Lake v. Causfield, 3 Bro. C. C. 263; Forder v. Wade, 4 Bro. C. C. 476; Hodson v. ib. 802. See also 2 Equity Draftsman, 362. land, 10 Hare, Appx. 19; Gann v. Gregory, 3 And the note to Wigan v. Row- ⚫ 7 Ves. 292. This practice will probably not hereafter be adopted; see ante, p. 860 et seq., as to the manner in which public documents may be proved, in which class it is presumed wills may be included. |