proof of wills in common form in the English courts of probate, no notice to those opposed to the will is given, and no one can object to the allowance of the proof. The executor acts his own discretion in regard to which form of proof he will adopt.

cause in the court-book, and the contentious business shall thereupon be held to commence."

--

Where there is no caveat filed, or no entry of appearance in reply to the warning, the executor may nevertheless proceed in solemn form, by issuing a citation to all persons interested in opposition to the probate of the will, which, in ordinary cases, will extend only to the next of kin in England, - the probate there extending only to the title of the personalty, and in America, where the probate binds both real and personal estate, to the heir or heirs, and next of kin, which by special enactment in most of the states are identical. Or where probate has issued, in the first instance, in common form, those interested in opposition to the will may put the executor to prove the same in solemn form by a citation to that effect, requiring also that the executor, within eight days, return the probate to the office of the registrar, and show cause why the same should not be revoked.

We have taken the foregoing summary of the rules of the present English Court of Probate, from those Rules and Orders established under 20 & 21 Vic. ch. 77 & 21, and 22 Vic. ch. 95.

The nature of the proceeding in the probate of the will in solemn form is well defined in Brown v. Anderson, 13 Ga. Rep. 171, as requiring that all parties in interest be duly cited to witness the proceedings, that the will be produced in open court, that the witnesses be there examined, and that all parties in interest have the privilege of cross-examination. Such probate, it is said, is conclusive. But we apprehend that probate in common form- that is, where no one appears to contest the probate is equally conclusive, the American practice commonly requiring, in all cases, general notice, by publication of the time and place of probate, whether in common or in solemn form, the only practical difference in the two made in the practice of many states being, that the former is allowed where no objection is interposed, and the latter is always required where any contestant appears. But in some of the states the same distinction prevails between probate in common form and solemn form as in the English practice, the former being wholly ex parte, and not conclusive upon any one interested in the estate, and who shall demand probate in solemn form within the time allowed by statute. Brown v. Anderson, supra; Armstrong v. Baker, 9 Ired. 109; Kinard v. Riddlehoover, 3 Rich. 258; Etheridge v. Corprew, 3 Jones Law, 14; Carroll v. Llewellin, 1 Har. & McHen. 162.

If he is informed of objections being made against the will, or has reason to expect them, he naturally adopts the solemn form of proof. And on the contrary, if no ground of objection is known to exist, and no such objection is expected, he will naturally proceed in common form.2

3. Where proof in solemn form is intended, formal notice is given to all parties interested. And where the will is proved in the first instance in common form, any one interested in the estate may, within reasonable time, cite the executor to make proof of the will in solemn form, or per testes.

4. This is the form of proof most in use in the American states in regard to wills. But the proof of wills in common form exists in a considerable number of the American states.5 We shall scarcely be required to dwell longer upon this distinction. It may not, however, be deemed altogether out of place to suggest here, that if the practice in the American probate courts were made to conform more nearly to that of the English statute in regard to all non-contested cases, requiring no production and proof by witnesses where no opposition appeared, and the will appeared regular upon its face, it would save considerable expense, sometimes, without much liability to error in consequence of the change. We have always felt surprise that witnesses should be required to attend the probate courts before any objection was made.

5. But the more common practice in the American probate

21 Wms. Exrs. 292-299.

The notice in such cases, in the American states, by statute, is only required to be by publication in some newspaper circulating in the place of the domicil of the testator. In the English practice, it seems to be by special summons. 1 Wms. Exrs. 299 et seq.

This in some instances has been held to extend to thirty years. 1 Jarman on Wills, (Perk. ed.) 223; Noyes v. Barber, 4 N. H. Rep. 406; 1 Wms. Exrs.

210.

Mr. Perkins, in his edition of Jarman, vol. i. pp. 222, 223, enumerates New Hampshire, Virginia, Tennessee and some others. Ante, n. 1.

courts is to require the attendance of at least one of the subscribing witnesses to the will at the time of probate, all objectors having been warned by general public notice to be present at that time, and interpose any objections they may have against the allowance of the will and probate of the same.6

6. There can be no adequate reason for requiring the attendance of one of the witnesses, or, as is sometimes done, of three, where all parties objecting to the probate have been warned to appear, and no objection is interposed. And there can be no ground for the argument in favor of this course, that no one can know beforehand whether objections will be made or not; since in a course of practice where all wills are required in the first instance to be proved in solemn form, it would be but reasonable to give the executor, or those propounding the will for probate, an opportunity, at an after term or adjourned session of the court, to meet any objections which should be interposed.?

Ante, pt. 1, pp. 29-51. This subject is here so extensively discussed, that we need not further attempt it. We think it ought to be established as a standing rule of practice in courts of probate, that the affidavit of one of the witnesses, taken out of court, shall be sufficient to establish a will that is regular upon its face and contains a perfect attestation clause, where no objection to the probate is interposed. And it has been lately decided in the English Court of Probate, that, in contentious proceedings, the party propounding the will is not bound to call both the attesting witnesses. Forster v. Forster, 33 L. J. Prob. 113. But if the one called testify against the execution of the will, he must call the other. Owen v. Williams, 9 L. T., N. s. 86; 32 L. J. Prob. 159. The practice in the English courts is, where the witnesses to a will, or some of them, reside abroad, and their attendance cannot be procured, to appoint a commission of one or more persons, who may act either jointly or severally, for taking the testimony of such absent witnesses, and for this purpose to attach the original will to the commission, an attested copy being first deposited in the registry. Forster v. Forster, 10 Jur. N. s. 594. In such cases, where a commissioner is appointed in an ex parte suit, he must be nominated by the court, and not by the party. Lodge v. Lodge, 32 L. J. Mat. Cas. 93.

'A course of practice, under rules somewhat similar to those prevailing in the English Court of Probate, would be found, we believe, exceedingly useful

7. In addition to what we have just referred to, we may suggest here, that in contentious causes in the Court of Probate, those who propound the will should produce all the witnesses, or account for their absence. It will not be required in all cases that all the witnesses should be examined by them, since the testimony of one witness, whose memory is distinct to all the requisite points of the proof, will be sufficient to make a case. It is not requisite that the attestation of the other witnesses be proved by their own testimony. For, although the law requires more than one witness to the execution of a will, it is not because any different measure of proof is intended to be thereby established, in the case of wills, from that which obtains in all cases, that of the testimony of one credible witness. The greater number of witnesses are required in the authentication of wills, in order to guard against fraud or imposition, and to secure satisfactory proof, after the lapse of the long period of time and the numerous accidents liable to occur between the execution of wills and the time of probate, which in many instances extends over many years. That this is so will readily occur to all, when it is considered that the proof of the due execution of a will sometimes rests upon the testimony of one witness corroborated by circumstances, where both the other witnesses to the transaction are either wholly oblivious in regard to it, or else deny either their signatures or the fact of being present at the execution. And even where all the witnesses except one were deceased or beyond the jurisdiction of the court, and the witness present deposed that the attestation was to the blank signature of the testator, the will was nevertheless admitted to

and acceptable in the American courts of probate. But from the fact that many of the judges are not professionally educated, and that frequent changes in the incumbents occur in many of the states, it is more difficult to introduce the needful changes in the practice of those courts. It seems to be expected by many, that the legislatures in the several states will see to these matters in due time. But, for many reasons, that is the last place where they ought to be looked for, or where they could fairly be expected to be wisely cared for.

probate, upon the general presumption that the will was written before the signature of the testator, founded upon the ordinary mode of doing business of that character. And in Lowe v. Joliffe the will was established, notwithstanding all the witnesses testified that the testator, at the time of signing his will, was utterly incapable of making a will, or transacting any business whatever.10 Some of the judges who have discussed this point insist that the executor, or those who attempt to establish the will, must first examine all the witnesses, in order to give the objectors the benefit of cross-examining them, either upon the point of due execution or of the sanity of the testator; but we apprehend that nothing more is fairly demanded in such cases than what is stated by Spencer, Ch. J., in Jackson v. Le Grange: 11 "I consider it well settled, that on a trial at law, where the execution of a will comes in question, the party supporting or claiming under it is not under the necessity of calling more than one of the subscribing witnesses, if he can prove the execution; ..... but if the witness cannot prove these requisites, the other witnesses ought to be called." It is probably true that the opposing party, in putting the other witnesses upon the stand, may have somewhat the benefit of cross-examination in the way of putting leading inquiries, and some cases say even by showing that the witness had made declarations out of court inconsistent with the validity of his attestation of the will as a valid instrument, or that he did not believe the testator of sane mind at the time of execution, and that he had attested it merely to please him.12

Lloyd v. Roberts, 12 Moore P. C. C. 158; ante, pt. 1, p. 218, and n,

1 Wm. Bl. R. 366.

Jauncey v. Thorne, 2 Barb. Ch. 40, 52, 53, where this and analogous questions are extensively discussed by the learned Chancellor. Ante, pt. 1, pp. 3239. See also Jackson v. Christman, 4 Wend. 277.

19 Johns. R. 386, 388.

"Townshend v. Townshend, 9 Gill. 506; Harden v. Hays, 9 Penn. St. 151. But see Baxter v. Abbott, 7 Gray, 71; Weatherhead v. Sewell, 9 Humph. 272 post, pl. 11.