6. There is another case, decided by Lord Hardwicke, which has been claimed to determine this question in the same direction. The Lord Chancellor here said: "It has been determined, over and over in this court, that you must show the person to be of sound disposing mind, where a will is to be established as to real estate, and especially if there are infants in the case." This was probably said in regard to the mode of examining the witnesses in equity, the same as in the last case referred to,

at the hearing. But this rule did not seem applicable to the case of wills, since the witnesses to such an instrument are placed about the testator for the express purpose of observing his apparent capacity, at the time of executing the instrument, and consequently, when any question affecting the mental capacity of the testator arises in the case, it is proper these witnesses be first examined to that point. But this, in practice, is, we believe, always done by the objectors to the probate. We do not apprehend the executor is bound to examine the witnesses upon the point of the capacity of the testator to execute the instrument offered. He must, undoubtedly, produce the witnesses, in contested cases of probate, and subject them to the cross-examination of the contestants, and thus makes them his witnesses. But there seems no more necessity, or propriety, that the executor should examine the witnesses to the will, in the first instance, upon the mental capacity of the testator, than upon any other question of capacity, such as alienage, infancy, or coverture. All these questions are doubtless involved in the general inquiry, whether the instrument offered be the will of the testator named therein, and upon that broad issue, those who propound the will, take the burden. But this does not reverse the order of proof, in regard to each particular fact, which may be incidentally involved in the entire range of that issue. This is the same inquiry always involved in every trial of an action upon the general issue. The party assuming the general burden of proof upon the issue is not compelled to disprove each particular fact, alleged by the opposite party, in attempting to defeat the proof, upon the main issue. If it should be alleged, in an action upon contract not in writing, that the contract was obtained by fraud, the burden of proof in regard to that particular point would be upon the party alleging it, notwithstanding the general burden rested upon the other party. So also, of the several facts constituting incompetency in the testator, the facts must be established by the party relying upon them, and the party assuming the proof of the main issue may wait until some proof of the existence of such facts, as the contestants rely upon, is adduced. See post, pl. 15, n. 21. Wallis v. Hodgeson, 2 Atkins, 56.

although it does not precisely appear in the report, how the question did arise.

7. The ecclesiastical courts, as is well known, do not have any jurisdiction of the probate of wills affecting real estate. Hence, they have to be proved in the English courts of common law or equity, whenever questions of title under wills arise in those courts. And the courts of equity, whenever any question arises in regard to the validity of a will, almost uniformly send the question to be tried in the common-law. courts, either under the feigned issue, devisavit vel non, or in an action of ejectment, to be brought by the party claiming under the will. And in sending such an issue to be tried in the common-law courts, it is not uncommon for the courts of equity to give some directions, in regard to the order and extent of proof to be adduced by the respective parties to the issue involved, as that the plaintiff may read the defendant's answer at the trial before the jury, and that certain facts, which the parties are under rule of the court not to contest, shall be conceded; and in regard to the proof of wills, that the party relying upon the will shall produce all the subscribing witnesses, at the trial, if that is not shown to be impracticable, or unless the opposite party shall waive the production of one or more of them.

8. This subject was very extensively examined and discussed in a later case, before Chief Justice Tindal, and Lord Chief Baron Lyndhurst, sitting for the Chancellor, Lord Brougham, who had been of counsel in the case. And it was there held, that where, as in that case, the bill sought to set aside the will, and the witnesses were some of them understood to be unfavorable to its validity, that it was sufficient for the devisee to call such of the witnesses, as he might elect to do, producing the others in court to be examined by the heir. The general rule

6

2 Story, Eq. Jur. § 1447; Bootle v. Blundell, 19 Ves. 494, 500 et seq.; Ogle v. Cook, 1 Ves. sen. 177.

'Tatham v. Wright, 2 Russ. & My. 1.

which now obtains in the English courts, is, that the party propounding the will must produce all the witnesses to the will, and make them his witnesses, and give the contestants the benefit of cross-examination. And in the case of Tatham v. Wright, it is assumed, as the general rule of practice in the courts of equity, where the will is sought to be established by the plaintiff in the bill, that he must call and examine all the witnesses to the will. The opinion of Chief Justice Tindal will be the most satisfactory exposition of the English law which we could give. "If there is any general rule in this court," said the learned judge, "that, in all cases, and under all circumstances, the plaintiff, in an issue on the question, devisavit vel non, has the duty cast upon him of making the three attesting witnesses to the will, his own witnesses upon the trial of the issue, if alive, or in a condition to give evidence, there would be no necessity for discussing the second ground of the motion; for, in the present case, two of the subscribing witnesses, who were alive and actually present in court, under the subpoena of the plaintiffs in the issue, were not called as witnesses at the trial.

9. "It may be taken to be generally true, that in cases where the devisee files a bill to set up and establish the will, and an issue is directed by the court, upon the question, devisavit vel non, this court. will not decree the establishment of the will, unless the devisee has called all the subscribing witnesses to the will, or accounted for their absence. And there is good reason for such a general rule. For as a decree in support of the will is final and conclusive against the heir, against whom an injunction would be granted, if he should proceed to disturb the possession after the decree, it is but reasonable that he should have the opportunity of cross-examining all the witnesses to the will, before his right of trying the title of the devisee is taken from him. In that case, it is the devisee who asks for the inter

8 1 Wms. Ex'rs, 308.

ference of this court, and he ought not to obtain it until he has given every opportunity to the heir at law to dispute the validity of the will. This is the ground upon which the practice is put in the cases. But it appears clearly from the whole of the reasoning of the Lord Chancellor, in the case of Bootle v. Blundell,10 that this rule as a general rule, applies only to the case of bill filed to establish the will (an establishing bill, as Lord Eldon calls it, in one part of his judgment), and an issue directed by the court upon that bill. And even in cases to which the rule generally applies, this court, it would seem, under particular circumstances, may dispense with the necessity of the three witnesses being called by the plaintiff in the issue. For, in Lowe v. Joliffe, where the bill was filed by the devisees under the will, and an issue, devisavit vel non, was tried at bar, it appears from the report of the case, that the subscribing witnesses to the will and codicil, who swore that the testator was utterly incapable of making a will, were called by the defendant in the issue, and not by the plaintiff; for the reporter says, 'to encounter this evidence, the plaintiff's counsel examined several of the nobility and gentry, physicians and attorneys, and some of the friends of the testator, who all strongly deposed to his entire sanity;' and, again, the chief justice expressed his opinion to be, that all the defendant's witnesses were grossly and wilfully perjured. And after the trial of this issue the will was established. In such a case, to have compelled the devisee to call these witnesses would have been to smother the investigation of the truth.

11

10. "Now, in the present case, the application to this court is not by the devisee seeking to establish the will, but by the heir at law calling upon this court to declare the will void, and to have the same delivered up. The heir at law does not seek to try his title by an ejectment, and apply to this court to direct

' Ogle v. Cook, 1 Ves. sen. 177, and in Townsend v. Ives, 1 Wils. 216, the rule is put upon the ground, that the bill is brought against the heir at law, who is an infant, and that the court must protect his rights.

10 19 Vesey, 494, 500, et seq.; Cooper, 136.

11 1 W. Black, 365.

that no mortgage or outstanding terms shall be set up against him to prevent his title being tried at law, but seeks to have a decree in his favor, in substance and effect to set aside the will. This case, therefore, stands upon a ground directly opposed to that upon which the cases above referred to rest. So far from the heir at law being bound by a decree which the devisee seeks to obtain, it is he who seeks to bind the devisee; and such is the form of his application, that if he fails upon this issue, he would not be bound himself. For the only result of a verdict in favor of the will would be, that the heir at law would obtain no decree, and his bill would be dismissed, still leaving him open to his remedies at law. No decided case has been cited, in which the rule has been held to apply to such a proceeding; and certainly, neither reason nor good sense demands that this court should establish such a precedent under the circumstances of this case. If the object of the court in directing an issue, is to inform its own conscience, by sifting the truth to the bottom, that course should be adopted with respect to the witnesses, which, by experience, is found best adapted to the investigation of the truth. And that is not attained by any arbitrary rule, that such witnesses must be called by one, and such by the other party; but by subjecting the witnesses to the examination in chief of that party, whose interest it is to call him from the known or expected bearing of his testimony, and to compel him to undergo the cross examination of the adverse party, against whom his evidence is expected to make.

"In the present case Mr. Proctor and Mr. Edmund Tatham, two of the subscribing witnesses to the will, had been examined. in this court, and their depositions were known to both parties. It was well known, that, if called by the devisee, they would state in effect'that the testator was, at the time of signing and publishing the will, of weak mind and deficient understanding, though of good memory; that he was of sufficient mind to make a plain and simple disposition of his property, but not an intricate will like the present.'