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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.”
If one of the
But if one of the witnesses be dead, a will may be witnesses be dead, proof of his hand. read, on proof of his hand-writing, though this must writing may be
be accompanied by positive and satisfactory proof, that he is dead. Thus in Bishop v. Burton", 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', an objection was made may be proved for the defendant, that one of the witnesses being where a witness is beyond sea. beyond sea, and the others not having sworn that the
testator acknowledged his hand-writing to the third,
See Ogle v. Cook, 1 Vez. 177. all must be examined or a reason given why any one is not. But in Powell v. Cleaver, 2 Bro. C. C. 504, Lord Thurlow said the practice had been so ; but he doubted whether the rule had ever been laid down so largely.
* Comyns Rep. 614,
il Vez, 459.
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 hand-writing 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."
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, than 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
# 5 Vez, jun. 411.
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 ", 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 practice has been to examine all,
The hand- This rule has been relaxed in other instances, writing of a witness, who where, to havę rigidly adhered to it, would have since the subscription has imposed impossibilities upon persons coming into become insane, may be proved. equity to establish these instruments. As, where a
witness to a will of real estate had since become insane, proof of the hand-writing of such witness was allowed". And 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 of two of the witnesses was proved. And in the case And his Honour observed, that he did not see how a of an old will, where no ac-' will could be distinguished from a deed as to this given of a wit- point; only that the former, not having effect till the ness, proof of the hand-writing may be dispensed
* 2 Bro. C. C. 504. . • Bennet o. Taylor, 9 Vez. jun. 381.
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 (3) 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.
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
(3) 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 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.
the case of soldiers in actual military service, (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"; and Bracton
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'. And though it be written by another person, hy the testator's direction, without even having been signed by the testator, if it can be shewn to have been made according to such instructions, and to have received
Vid. Swinb. on Wills, pt. 1. sect. 3. b Lib. 2. c. 26.
• Godolp, O. L. p. 1. c. 21.