"The real question is, whether these witnesses are to be believed upon this evidence, in contradiction to their own solemn act in the attestation of the will and codicil. That is the problem to be solved. At the time they are put into the witness-box it is known their evidence is in favor of the heir at law, and entirely subversive of the will. What questions, then, can the devisee wish to put to them, other than such as call upon them to explain and account for their solemn attestation of these instruments? And those are questions which can arise upon cross-examination alone. He would wish to ask Mr. Proctor, what could induce him to attest the execution of the will in 1822, and the codicil in 1825, if such was his opinion of the intellect of the testator? Upon what ground he had been the attesting witness to two former wills which had been successively destroyed, and the depositary of the duplicates of each in succession, at the request of the testator, down to the hour of his death? Whether he had not lived in habits of intimacy with Mr. Marsden, and treated him always as a man of understanding and sense? Whether he had not, upon a former occasion, lent money to Mr. Marsden on his bond, and received payment from him, thereby treating him as a man capable of binding himself, and of managing his own affairs? And similar questions would be proposed to Mr. Tatham. It is obvious, that if the devisee should be compelled, on the trial of this issue, to make those witnesses his own, the effect .would be to shut out instead of discovering the truth; for after the formal examination in chief, to which alone they could be subjected, the heir at law would take care not to ask them a single question. It is further to be observed, that in the present case, there is the less necessity for calling all the subscribing witnesses to the will, as no question arises upon the facts attending the execution of the will, or the compliance with the requisites of the statute of frauds. There is nothing peculiarly within the knowledge of these witnesses, nor any point to which they could be examined, which is not common to the other witnesses called to depose to the

state of the testator's understanding. Upon the ground, therefore, that there is no rule in this court which calls upon the devisee to bring forward all the subscribing witnesses to the will, where the heir at law files the bill, as also, upon the ground that, where the subscribing witnesses contradict the effect of their own attestation, it would not be unreasonable to dispense with the rule, even in cases where it is held to apply,— it appears to us that no new trial should be granted on account of Mr. Proctor and Mr. Edmund Tatham not having been examined by the devisees on the trial of this issue."

11. The ultimate fact to be arrived at, in establishing a will, is the competency of the testator to do the act, at the time it was attempted to be transacted.12 Hence, where the use of opium or alcohol is alleged, it must be proved that the testator was under its influence at the very time of making the will.18 And where the will is written entirely by the testator, or what is called a holograph will, it is regarded as affording some presumption of sanity, which will depend indeed very much upon、 the character of the instrument.14

12. And if in form the witnesses to a will are asked the question whether they regarded the testator of a sound and disposing mind and memory, the affirmative answer to this general question is all that is expected in the first instance, and where the validity of the will is contested upon the ground of want of mental capacity, the presumption is against the party alleging this fact, and he goes forward with the proof, as we have seen, in most courts, but the general burden of the issue is not changed.

13

Whitenack

v. Stryker, 1 Green, Ch. 11; Grabill v. Barr, 5 Barr, 441; Brooks v. Barrett, 7 Pick. 94. The question of capacity refers only to the time of making the will. The burden of proof rests on those who allege unsoundness of mind, but when insanity is once established the burden shifts. Stevens v. Vancleve, 4 Wash. C. C. 262.

v. Temple, 1 Hen. & Munf. 476.

"Temple v. Temple, supra.

It is well observed by Prof. Greenleaf, 15 that the exception, in regard to the burden of proof of insanity, in cases of the probate of wills, is rather apparent than real.

13. In the case of Brooks v. Barrett,16 it is decided, that upon appeals, in probate cases, the executor has the burden of proof, and the right to open and close the case, as he is first to prove the execution of the will, and to examine the subscribing witnesses, as to the sanity of the testator. The will being proved by the statutory evidence, the burden of proof is upon the party objecting to its allowance on the ground of insanity, to show that the testator was not of sound mind; and if the evidence is doubtful, the presumption of law in favor of sanity is to have its effect. Such seems to be the rule in other states.17

14. In Gerrish v. Nason,18 Whitman, Ch. J., said: "The power to make wills and the manner of executing them, and their efficacy, depend upon certain special provisions of statute law, one of which is that every person of sound mind, and of the age of twenty-one years, may dispose of his estate by will." "The presumption, that the person making a will was, at the time, sane, is not the same as in the case of the making of other instruments; but the sanity must be proved." 19

15 6 Greenleaf's Cruise, 14, n. We venture to suggest, that if any inquiry should be made of the witnesses to a will, in the first instance, affecting the mental capacity of the testator, it should be made strictly in the negative form, that is, with a view to rebut any presumption against the party propounding the will, on account of the burden of proof resting upon him. With this view, the witnesses might properly be asked, whether they noticed any thing in the conduct or appearance of the testator, at the time, calculated to show how far he comprehended the nature and scope of the business in which he was engaged, and so far as he did to state it.

16 7 Pick. 94.

17 Jackson v. King, 4 Cowen, 207. See also, Blaney v. Sargeant, 1 Mass. 336; Buckminster v. Perry, 4 Mass. 593; Hubbard v. Hubbard, 6 Mass. 397.

18 22 Maine, 438, 440, 441.

19 This seems to imply that the fact of sanity is involved in the proof of a will, the same as signing. But we are confident the learned judge does not however

15. And in Barry v. Butlin,20 Mr. Baron Parke said, in pronouncing judgment on the appeal; "The strict meaning of the term onus probandi' is this, that if no evidence is given by the party on whom the burden is cast, the issue must be found against him. In all cases this onus is imposed on the party propounding a will; it is in general discharged by proof of capacity and the fact of execution." Sanity is the great fact which the witness to a will has to speak to, when he comes to prove the attestation; and this is the true reason why a will can never be proved as an exhibit, viva voce, in chancery, though a deed may be; for there must be liberty to cross-examine as to sanity.21

mean it, in that sense, but only that it is to be established, like any other negative fact, by that kind of negative proof which the nature of the case implies. As in the trial of indictments for the carrying on of certain trades without license, the prosecutor is required to take the general burden of proof, and to make a prima facie case of guilt, and upon the whole case to establish the guilt of the accused by the requisite measure of proof, or else fail in the prosecution. But this by no means implies, that if the defendant relies upon a license, or other special exemption from the penalty imposed, he is not to assume the burden of proving such affirmative facts as he alleges in his defence.

1 Curteis, 637, 640.

"This seems to us placing the question upon the true ground, that the fact of capacity is so far involved in the proof of the execution of a will, that it is compepetent for the party objecting to the validity of the instrument to cross-examine the witnesses of the other party upon that point; and he is not obliged to wait till he puts in his own case and then recall the witnesses to the will, thus making them his own as to the point of the capacity of the testator, which he must do if that question is not involved in the proof of the will. But it does not seem equally clear that the party setting up the will is, upon principle, any more bound to examine the witnesses to this point, in the first instance, than he is to any other statutory requirement, such as age, discoverture, citizenship, &c.. But we admit the general course of practice in testamentary causes is to examine the witnesses to this point in the opening inquiry. But we apprehend this practice has grown up, in jury trials, in order to vindicate the right to open and close the case. For if there is a presumption in favor of sanity, which is finally to preponderate in the case, and which is of sufficient force to determine it, in the absence of any more

16. This doubt as to the necessity of putting the inquiry to the witnesses, in the first instance, in regard to the sanity of the testator, seems to have embarrassed the minds of learned judges, in stating the law upon this point. In New Hampshire, Chief Justice Parker 22 said: "It is probably usual in the probate courts, upon proof of a will, to inquire of the subscribing witnesses, whether the testator was of a sound and disposing mind; but it seems to be well settled, that every man is presumed to be sane until there is some evidence shown to rebut that presumption." The learned judge evidently felt the force of the irreconcilable incongruity, between the practice alluded to, and the acknowledged principles stated by him.

17. In Connecticut, the rule is clearly established, that the general burden of proof is upon those who propound the will.28 The learned judge here says, the case is to be tried the same upon appeal as in the probate court: "Those who claim under the will, must, therefore, take upon themselves the burden of proof; and they must not only prove, that the will was formally executed, but that the testator was of sound and disposing mind." And it is here determined that the party propounding the will goes forward in the proof and opens and closes the argument.

decisive, positive evidence, as was very justly held in Brooks v. Barrett, 7 Pick. 94, we cannot comprehend why this presumption should not be allowed to have its legitimate operation, in the first instance, as well as in the final result, and be held sufficient to determine that point in favor of those propounding the will, without putting in any positive proof upon that point. This view of the question reconciles all the cases which have attempted to assume the ground that the general burden of the issue, devisavit vel non, is upon the party claiming under the will, but upon any allegation of want of capacity in the testator, it is upon the contestants. This view seems to be maintained in some cases where the subject was carefully examined. Sloan v. Maxwell, 2 Green, Ch. 580; Chandler v. Ferris, 1 Harrington, 454, 461; Bell v. Buckmaster, and Cubbage v. Cubbage, ib. in notes.

22 Pettes v. Bingham, 10 N. H. 515.

23 Williams, J., in Comstock v. Hadlyme, 8 Conn. 261.