the other party has a right to a monition against the witness to attend for cross-examination, if they can discover him. (g) In a case where a married woman made a will, under a power enabling her to dispose of certain property by a will attested by two witnesses, the will was pronounced for, though and at all other places where he may be expected to be found; and inquiry should be made of his relatives, and others who may be supposed to be able to afford information. And the answers to such inquiries may be given in evidence, they not being hearsay, but parts of the res gesta. If there is more than one attesting witness, the absence of them all must be satisfactorily accounted for, in order to let in the secondary evidence." See Hodnett v. Smith, 2 Sweeny (N. Y.), 401; 10 Abb. Pr. N. S. 86.] (g) Mynn v. Robinson, 1 Hagg. 68. See Cartwright v. Cartwright, 1 Phillim. 94, [and ante, 346, note (d3),] as to the necessity of producing an attesting witness. See, also, Millar v. Sheppard, 2 Cas. temp. Lee, 520, as to proving his handwriting, when resident in an enemy's country; [or in any country out of the jurisdiction of the court. Lord Carrington v. Payne, 5 Ves. 404; Miller v. Miller, 2 Bing. N. C. 76; Smith v. Jones, 6 Rand. 33; Ela v. Edwards, 16 Gray, 91; McKeen v. Frost, 46 Maine, 239; Sears v. Dillingham, 12 Mass. 358, 361, 362; Chase v. Lincoln, 3 Mass. 236; In re Stow, 5 Bradf. Sur. 305. If it be impossible upon legal principles to present the testimony of one of the witnesses to a will, the will may be proved without his testimony. Patten v. Tallman, 27 Maine, 17, 29. The death of an attesting witness, or of all the attesting witnesses, will not defeat the validity of a will, if, in fact, duly executed. Where an attesting witness dies after attestation and before probate of the will, proof of his handwriting is primâ facie evidence that he duly and properly attested it. Nickerson v. Buck, 12 Cush. 332; Sears v. Dillingham, 12 Mass. 361, 362; Adams v. Norris, 23 How. (U. S.) 353; Perkins v. Perkins, 39 N. H. 169. Particularly where the attestation clause is full. Butler v. Benson, 1 Barb. 526. But the want of an attestation clause, in the case of the death or absence from the jurisdiction of the court of one or of all of the witnesses, does not defeat the probate of the will, but only changes the nature of the proof. Instead of its being shown by the attestation clause that there was a compliance with the statute, the court, or the jury, if the case is tried by a jury, are to be reasonably satisfied of the fact of a proper attestation from other sources and the circumstances of the case. Ela v. Edwards, 16 Gray, 91, 97. In this case, 16 Gray, 98, 99, Dewey J. said: "The obvious policy of the law, as heretofore declared in this commonwealth, has been that no man's will should be defeated through the want of memory on the part of the attesting witnesses to the facts essential to a good attestation; and in furtherance of the same object, every fair and reasonable intendment should be made to prevent a will from being defeated by the want of direct evidence as to the attestation, occasioned by the death or removal of the witnesses beyond the jurisdiction of this court." It was said by Wilde J. in Hawes v. Humphrey, 9 Pick. 357: "I take it to be well settled, that, if the witnesses after the attestation and before the probate, should become insane, infamous, or otherwise disqualified, the handwriting of the witnesses may be proved, and the will be thereupon allowed." See Genl. Sts. Mass. c. 92, § 6; Sears v. Dillingham, 12 Mass. 361. The law is settled that a will cannot be proved on the evidence of part of the attesting witnesses without accounting for the absence of the other or others. Jackson J. in Brown v. Wood, 17 Mass. 73.] both the attesting witnesses deposed to the deceased's incapacity. (h) So, after publication, the evidence of an attesting witness may be excepted to by the party who produces him. (¿) There has already been occasion to show, (k) that a will * may be admitted to probate, as duly executed under the new statute, notwithstanding the attesting witnesses may have no recollection at all as to the circumstances attending the execution, or notwithstanding one only should affirm and the other negative, or even both should negative a compliance with the statute. (k1) With respect to the necessary proof, in ordinary cases, of the instrument in question having been intended by the deceased to be his will, it is not thought necessary to add much to those observations, which there has already been occasion to make on the (h) Le Breton v. Fletcher, 2 Hagg. 558; S. P. in K. B. Lowe v. Joliffe, 1 W. Bl. 365. Sec, also, Landon v. Nettleship, 2 Add. 245; Mackenzie v. Handaside, 2 Hagg. 219; [ante, 37, and cases in note (n); Bell v. Clark, 9 Ired. 239; Perkins v. Perkins, 39 N. H. 168, 169; Otterson v. Hofford, 7 Vroom, 129; Hall v. Hall, 18 Geo. 40; Jauncey v. Thorne, 2 Barb. Ch. 40.] So, in the common law courts, if a subscribing witness should deny the execution of the will, he may be contradicted, as to the fact, by another subscribing witness; and even where all three witnesses were called and denied their hands, the court admitted the plaintiff to contradict that evidence, and he supported the will against that testimony. Austin v. Willes, Bull. N. P. 264; Pike v. Badmering, cited 2 Stra. 1096, in Rice v. Oatfield; [Humphrey's Estate, 1 Tuck. (N. Y.) Sur. 142; Orser v. Orser, 24 N. Y. 51; Peebles v. Case, 2 Bradf. Sur. 226; Higgins v. Carlton, 28 Md. 118; Whitaker v. Salisbury, 15 Pick. 544; Howard's Will, 5 Monr. 199; Harper v. Harper, 1 N. Y. Sup. Ct. 351, 356. But the evidence to sustain the will must in such cases be clear and decisive. Hardy v. The State, 7 Harr. & J. 42; Vernon v. Kirk, 30 Penn. St. 218; Pearson v. Wightman, 1 Const. Ct. R. 336. In Perkins v. Perkins, 39 N. H. 168, 169, Bell C. J. said: "The attesting witnesses being produced and examined, it is not essential that they should sustain the legal presumption of sanity. They may all deny the sanity of the testator, and yet, if the proof of a sound condition of mind is shown by the whole evidence, the will must be established." Ante, 102, and cases in note (s); 103, and note (w); Dean v. Dean, 27 Vt. 746, 748; 1 Phil. Ev. 502; Matter of Forman, 54 Barb. 274; Hopper's Estate, 1 Tuck. (N. Y.) Sur. 378; Newlon's Estate, 1 Tuck. (N. Y.) Sur. 349; Jauncey v. Thorne, 2 Barb. Ch. 40; Harper v. Harper, 1 N. Y. Sup. Ct. 351, 356. If one of the subscribing witnesses impeach the validity of the will on the ground of fraud, and accuse other witnesses, who are dead, of being accomplices in the fraud, the devisee may give evidence of their general good character. 1 Phil. Ev. 308, 502.] But a will may be pronounced against upon the evidence of the attesting witness thereto. Starnes v. Marten, 1 Curt. 294. (i) Mynn v. Robinson, 2 Hagg. 169. See Friedlander v. The London Assurance Company, 4 B. & Ad. 193. (k) Ante, 101 et seq. (k) [See ante, 103, note (w), 347, note (g); Tilden v. Tilden, 13 Gray, 110.] Doctrine of astical court, as to the ecclesi the mode of proving, handwrit subject, in considering the manner and form of making wills. (1) It may, however, be expedient in this place to call the attention to the doctrine of the ecclesiastical court, respecting handwriting, with regard both to the mode of proof, and the effect when proved. Besides the evidence of persons who have seen the party write, or who have ing. corresponded with him, as to their belief that the writing in dispute was or was not written by him, the ecclesiastical court always allowed witnesses skilled in the examination of handwriting and detection of forgeries (as inspectors of franks, clerks at the post office, &c.) to depose to their opinion, upon comparison of the writing in question with other documents admitted to be in the handwriting of the party, or proved to be so by persons who saw them written; (m) whereas, in the common law courts, this mode of evidence was rejected until the passing of the *stat. 17 & 18 Vict. c. 125. (n) Moreover, the evidence of such skilful person was, in the ecclesiastical court, admissible to prove that, in their judgment, the instrument in dispute is written in a fabricated hand, and not in the natural hand of any person. (0) And in the common law courts, this species of evidence has been received in several cases. (p) (1) Ante, 66 et seq. (m) Oughton, tit. 225, ss. 1, 2, 3, 4; Beaumont v. Perkins, 1 Phillim. 78; Saph v. Atkinson, 1 Add. 215, 216; Machin v. Grindon, 2 Cas. temp. Lee, 335; S. C. 2 Add. 91, note (a). See the judgment of Coleridge J. in Doe v. Suckermore, 5 Ad. & El. 708-710. The more ancient mode was to refer it to the officers of the court. In White v. Terry & Longmore, before Sir Geo. Hay, in 1774, the court referred to the deputy registrars of the admiralty and the consistory of London, for their opinion as to handwriting. 1 Phillim. 80, note (a), by Sir Wm. Wynne. in Heath v. Watts, Prerog. June 27, 1798, the court directed the deputy registrars of the admiralty, the arches, and the prerogative courts, to inspect several signatures of the deceased, and also two exhibits in his handwriting, and to compare them with the signature of the will, and to report their opinion after such com So parison; which they accordingly did, to the effect that neither the signatures nor the exhibits were written by the same person who had signed the will. 1 Phillim. 82, note (b). (n) By sect. 27, " Comparison of a disputed writing with any writing proved to the satisfaction of the judge to be genuine, shall be permitted to be made by witnesses; and such writings, and the evidence of the witnesses respecting the same, may be submitted to the court and jury as evidence of the genuineness, or otherwise, of the writing in dispute." (0) Reilly v. Rivett, 1 Phillim. 80, note (a); Saph v. Atkinson, 1 Add. 216. (p) Goodtitle v. Braham, 4 T. R. 497; Rex v. Cator, 4 Esp. 117, 145; Stranger v. Searle, 1 Esp. 14. But see contra, Gurney v. Langlands, 5 B. & Ald. 330; Doe v. Suckermore, 5 Ad. & El. 751, by Lord Denman. Effect of evidence as to hand But although the ecclesiastical courts thus admitted of a greater latitude of proof with regard to handwriting, it is by no means true that greater weight was attached to evidence writing: as to handwriting than in any other courts. On the contrary, the eminent judge who lately presided in the prerogative court of Canterbury (Sir J. Nicholl), has on several occasions expressed himself strongly on the subject of the inconclusive nature of such evidence, whether affirmative or negative; the former from the exactness with which hands may be imitated; the latter from the dissimilarity which is often discoverable in the handwriting of the same person, under different circumstances. (q) cient to will. Again, although it has been laid down, that where a will, or proof of its signature, is in the handwriting of the testator, it may handwriting alone be established, provided there is sufficient proof of the not suffi* handwriting; (r) yet it was a clearly established rule, establish a in the ecclesiastical courts, that similitude of handwritdisputed ing, even with a probable disposition, is not sufficient to establish a testamentary paper, without some concomitant circumstance, as the place of finding or the like, to connect it with the party whose will it is suggested to be. (8) What will be a sufficient connection must depend upon all the circumstances of the particular case. (t) Generally speaking, where there is proof of signature, everyRule that thing else is implied till the contrary is proved; and evion proof of dence of the will having been read over to the testator, signing, instruc- or of instructions having been given, is not necessary; (u) (q) Saph v. Atkinson, 1 Add. 213; Robson v. Rocke, 2 Add. 79; Constable v. Steibel, 1 Hagg. 60; Young v. Brown, 1 Hagg. 569; Rutherford v. Maule, 4 Hagg. 224, 225. (r) Ante, 68; [Sharp v. Sharp, 2 Leigh, 249; Hannah v. Peake, 2 A. K. Marsh. 133.] (s) Machin v. Grindon, 2 Cas. temp. Lee, 406; Saph v. Atkinson, 1 Add. 213; Robson v. Rocke, 2 Add. 98; Constable v. Steibel, Hagg. 60; Crisp v. Walpole, 2 Hagg. 531; Headington v. Holloway, 3 Hagg. 280; Rutherford v. Maule, 4 Hagg. 224; Bussell v. Marriott, 1 Curt. 9; Wood v. Goodlake, 2 Curt. 82, 176, 180; Hitchings v. Wood, 2 Moore P. C. C. 355, 443, 444; [Mowry v. Silber, 2 Bradf. Sur. 133.] Probability of disposition is of very little weight as proof that the instrument is not a forgery, however material it may be, if the question turns on capacity, volition, or fraudulent imposition. 4 Hagg. 226. (t) 3 Hagg. 280; 4 Hagg. 224, 226. [See Marr v. Marr, 2 Head (Tenn.), 303.] (u) Billinghurst v. Vickers, 1 Phillim. 191; Rodd v. Lewis, 2 Cas. temp. Lee, 176; Goose v. Brown, 1 Curt. 707; [Harrison v. Rowan, 3 Wash. C. C. 580, 584, 585; Pettes v. Bingham, 10 N. H. 514; Downey v. Murphey, 1 Dev. & Bat. 87; Carr v. M'Camm, 1 Dev. & Bat. 276; Smith v. Dolby, 4 Harr. (Del.) 350; Dorsheimer v. Rorbach, 8 C. E. Green (N. J.), 46.] for when an instrument has been executed by a competent person, it must be presumed that the party so executing knew the contents and the effect of the instrument, and that he intended to give that effect to it. (x) But there are some * cases of peculiar circumstance, where a more rigid mode of proof is enforced. (x) Fawcett v. Jones, 3 Phillim. 476; Wheeler v. Alderson, 3 Hagg. 587; Browning v. Budd, 6 Moore P. C. 435. [See Loy v. Kennedy, 1 Watts & S. 396; Weigel v. Weigel, 5 Watts, 486; Beall v. Mann, 5 Geo. 456; Smith v. Dolby, 4 Harring. 350.] Approbation will have the effect of prior instructions. Forfar v. Heastie, 2 Cas. temp. Lee, 310; Durnell v. Corfield, 1 Robert. 56. Moreover, a testator may, if he likes, authorize another person to make a will for him, and may say, "I do not know what you have put down, but I am quite ready to execute it," and such a will would be admitted to probate. Per Sir C. Cresswell, 3 Sw. & Tr. 38. Accordingly, that learned judge held a plea that the alleged codicil was not prepared in conformity with the intentions of the deceased, and the deceased, at the time of the execution of the alleged codicil, was ignorant of the contents thereof, to be bad on demurrer. Cunliffe v. Cross, 3 Sw. & Tr. 37. See, also, Middlehurst v. Johnson, 30 L. J., P. M. & A. 14. But see, contra, Hastelow v. Stobie, 35 L. J., P. M. & A. 18; S. C. 11 Jur. N. S. 1039, where Sir J. P. Wilde held a plea "that the deceased did not know and approve of the contents of the will" to be good. See, also, Cleare v. Cleare, L. R. 1 P. & D. 655; Atter v. Atkinson, L. R. 1 P. & D. 665; Goodacre v. Smith, L. R. 1 P. & D. 359; [Barry v. Boyle, 1 N. Y. Sup. Ct. 422.] But it may be doubted whether the view taken by Sir C. Cresswell is not more correct. It is surely a somewhat harsh construction of the law that a man shall not be allowed to confide in his friend or solicitor and depute him to draw up his will, and adopt it when so drawn up, without ascertaining what the contents of it are; particularly in wills tions and knowledge of the conbe pre tents shall sumed: exceptions: containing complicated limitations it |