8. It seems to be conceded on all hands, that where the subscribing witnesses, one or more, are disqualified from giving testimony subsequent to the time of attestation, or have deceased, or removed beyond the jurisdiction of the court, so that their testimony cannot be had, the will may be established by proving the handwriting of the witnesses and of the testator; and some authorities say, by proving that of the witnesses alone, although it would seem, that where the execution of such an instrument as a will, requiring such formalities, is attempted to be established by circumstantial evidence, it could not fail to strike all minds, that proof of the signature of the testator would be essential.13

9. It is obvious that the testimony of the witnesses to the execution of a will, after the lapse of the considerable period liable to intervene between the exccution and the probate, must be of almost every grade of certainty, or confirmation of the main fact inquired after. They may, one or more of them, be able to recall the scene of the execution of the instrument, and to declare the compliance with every minute particular required by the law; or they may have no such minute memory of the particulars which occurred, and may still be nearly as confident of their occurrence, either from their general knowledge of what was required to the validity of the execution, and being assured from general habit that those particulars occurred or they would not have subscribed their names as witnesses, or if they had done so and anything peculiar had occurred or been omitted, they should have recollected it; or else from the enumeration of all the particulars in the attestation clause, and having subscribed it, they may feel more or less assurance that such facts occurred; or they may have no recollection of the transaction,

13 Dean v. Dean, 27 Vt. R. 746. The authorities are here discussed somewhat in detail by Mr. Justice Isham. See also Sears v. Dillingham, 12 Mass. 358, 361, 363; Carrington v. Payne, 5 Vesey, 404, 411; Patten v. Tallman, 27 Maine, 17, 29.

which is per

there still

and only be able to identify their own signatures, and to state their presence from that fact; and this alone will raise a prima facie presumption, when the attestation clause is regular, that all the particulars there enumerated did occur. And even where the attestation clause is omitted, or is defective, haps more unfavorable than its entire omission, remains a prima facie presumption that all which appears upon the face of the will occurred in the order in which it there appears, and as the law requires it should be done; upon the natural presumption that every one knows the law and will be disposed to comply with its requirements, so far as any transaction in which he engages is concerned, according to the maxim, omnia præsumuntur rite et solenniter esse acta donec probetur in contrarium.14

14

* Ante, pt. 1, pp. 228, 243, and cases cited. In Clarke v. Dunnavant, 10 Leigh. 13, Tucker, President of the Court of Appeals, said: "On a question of probate, the defect of memory of the witnesses will not be permitted to defeat the will; but that the court may from circumstances presume that the requisitions of the statute have been observed, and that they ought so to presume from the fact of attestation, unless the inferences from that fact are rebutted by satisfactory evidence." See also Bennett v. Sharp, 33 Eng. L. & Eq. 618.

In the State of New York, before different courts, most of the questions affecting the probate of wills have been very extensively discussed. See Peebles v. Case, 2 Bradf. Sur. Rep. 226. In Wilson v. Hetterick, 2 id. 427, it was held, that the inability of the witnesses to remember any testamentary declaration of the testator, in the case of a will recently executed, must be regarded as fatal to the proof. But it is otherwise where the transaction is of long standing, especially if the attestation clause is perfect. Chaffee v. B. M. C. 10 Paige, 85, 90.

Where the witnesses to the will are all strangers to the testator, — which, contrary to the old practice, where a man invited his friends to become the witnesses of this solemn act, is now too often the fact, it will become necessary to establish his identity by independent proof of his handwriting, or in some other satisfactory mode. Mowry v. Silber, 2 Bradf. Sur. Rep. 133.

The requisites to the validity of a will must be those in force at the time of its execution; but the mode of procedure is that in force at the time the will is propounded for probate. Jauncey v. Thorne, 2 Barb. Ch. Rep. 40, 50, by Walworth, Chancellor.

The Court of Chancery in New York may, by statute, issue a commission for

10. The degree of diligence required in the search for the subscribing witnesses to a will is the same which the law requires in all cases, to prove loss. It must be bona fide, earnest, and intelligent, -such as one puts forth in attempting to learn the residence or place of business of any one, when it becomes important to his interest to learn such facts; it must be made in all places where the witnesses might be supposed to be found, after making inquiry in all places and of all persons where and of whom intelligence may fairly be supposed attainable.15 Search should be made for all the living witnesses.16

11. Where evidence is given of the witnesses to the will having conspired to perpetrate a fraud in the fabrication of the will, it has been held that this is such an impeachment of their

the proof of a will, either of real or personal estate, in all cases where, from the absence of the will or the non-residence of the witnesses, it cannot be proved in the usual manner before the Surrogate. Matter of Hornby, 2 Paige, 429. But this power is limited to the Chancellor, and cannot be exercised by a ViceChancellor. Ib.

A merely temporary absence of the witnesses to a will does not justify the probate upon proof of their handwriting; they must reside permanently abroad. Stow v. Stow, 1 Redf. 5 Sur. Rep. 305.

It was held in an early case in Massachusetts, (Chase v. Lincoln, 3 Mass. Rep. 236,) that any party interested in the probate of the will might insist upon the production of all the witnesses, if living, and subject to the process of the court. But if it is impossible to procure any one of them, the court will proceed without him, ex necessitate. But it is no objection to the validity of the probate of the will, that it appears on the face of the record that all the witnesses were not present. The legal presumption in favor of the record will imply there was some solid reason for the absence. Brown v. Wood, 17 Mass. 68, 72, 73. Where testimony is taken through the agency of an interpreter, it should appear that he was sworn. Amory v. Fellowes, 5 Mass. Rep. 219. But, after judgment, this will be presumed. If a witness is dead, or out of the jurisdiction of the court, proof of his handwriting will be held prima facie evidence that he duly attested the will. Nickerson v. Buck, 12 Cush. 332; Engles v. Bruington, 4 Yeates, 345.

15 1 Greenl. Ev. § 574, and cases cited.

16 Miller v. Miller, 2 Bing. N. C. 76; James v. Parnell, 1 Turn. & Russ.

417.

veracity that general evidence of good character is admissible in reply, even where some of the witnesses were dead.17 It is regarded the same as if the witnesses had given testimony of the facts implied or embraced in the attestation,18 and were shown, out of court to have made statements or done acts in conflict with such testimony.

12. Ancient wills have been established upon proof of the signature of the testator alone, the instrument appearing regular in other respects.19 The rule in chancery upon a bill to establish a will is, or has been regarded, as somewhat more stringent in regard to proof than that which we have indicated in the preceding paragraph. The rule there, as stated by an eminent equity judge in America, is that all the subscribing witnesses, if living and competent to testify, must be called by the party seeking to establish the will, and must be examined by him, so as to give the adverse party an opportunity to crossexamine them as to the sanity of the testator, and the circumstances attending the execution of the will.20

13. After a great lapse of time, a will appearing regular upon its face, and found in the proper custody, i e. in the office of the Secretary of State, in a state where the probate of wills is effective to pass real as well as personal estate, although affording no other evidence of probate, was held admissible in evidence.21

" 2 Phil. Ev. (Cowen & Hill's ed.) 978; 2 Starkie Ev. 1268. "Walworth, Chancellor, in Scribner v. Crane, 2 Paige, 147; ante, pt. 1, § 13, pl. 5.

"Duncan v. Beard, 2 Nott & McC. 400.

* Walworth, Chancellor, in Jauncey v. Thorne, 2 Barb. Ch. 40, 52; ante, pt. 1, pp. 32-39.

Stephens v. French, 3 Jones, Law, 359. The question of the effect of the lapse of time in regard to the probate of wills has been a good deal discussed in the American courts. The English rule of admitting a will after the lapec of thirty years, where it comes from the proper custody, and especially where the possession has been in accordance with its provisions, to be read without proof of its execution, seems generally to have prevailed in those states where

But we do not well comprehend how the probate of a will can fairly be presumed, unless there were evidence of the destruction of the records of the court having the appropriate jurisdiction, or else some proof from which it might reasonably be inferred that such record might not have been made, even where the probate had been passed. In ordinary cases, the mere fact of the non-appearance of the record of the probate in the proper place of deposit, would afford such conclusive evidence against its having ever existed, as to put at defiance all rational presumption to the contrary.

14. There has been considerable discussion in the courts and among text-writers as to the degree of proof required, or the ground of presuming, that the testator knew the contents of the instrument propounded as his will at the time of executing the same; and much nice learning might be collected upon the point. But we apprehend that where the testator is shown to have executed an instrument as his will, being in his right mind and of ordinary capacity, and no circumstances appearing to induce suspicion of fraud or imposition, it will be presumed

the probate of the will only operates upon the title to personalty. 1 Greenl. Ev. §§ 21, 142-144; Northrop v. Wright, 7 Hill, 476; Staring v. Bowen, 6 Barb. 109; Jordan v. Cameron, 12 Ga. Rep. 267; Hall v. Gittings, 2 Har. & J. 112. The New York cases seem to require, in order to admit a will to be read in evidence without proof of execution, that it be more than thirty years old, and that the possession shall have followed its provisions, or that there be other equivalent grounds for presuming it genuine. Jackson v. Luquere, 5 Cow. 221; Same v. Thompson, 6 id. 178; Same v. Christman, 4 Wend. 277; Fetherly v. Waggoner, 11 id. 599; Jackson v. Laroway, 3 Johns. Cas. 283.

It seems that in those states where the probate is evidence in regard to real as well as personal estate, that an ancient will, where there appears some, although defective, proof of probate, will be received in evidence, the presumption omnia rite acta being corroborated by the lapse of time. Giddings v. Smith, 15 Vt. 344; Jordan v. Cameron, 12 Ga. Rep. 267.

It is no fatal objection to the probate of a will that more than twenty years have elapsed since the decease of the testator. Shumway v. Holbrook, 1 Pick.