Rogers, J.
The plaintiffs in error, who were defendants below, have filed no less than twenty-four errors to the admission or rejection of evidence and the charge; all of which, it is believed, may be profitably reduced to some three or four prominent points, which it is my duty to notice.
The first point, which strikes at the root of the plaintiff’s claim, if decided in favour of the defendants, would render an examination of the other errors entirely useless. It is, that under the will of Abraham Hays, sen., John Hays is entitled to an estate for life, and not in fee. The testator, after devising one-half of the same property, describing it, to his son Francis, proceeds: — “Item. I give and bequeath the remaining above-mentioned tract of land to my sons John and Thomas, in the following manner, to be equally divided between them, with a straight line drawn through the centre,” &c. Did the question depend on this clause of the will, without the aid derived from other parts of it, it would pass but a life-estate, inasmuch as there are no words of inheritance attached to the devise. But we think there is a sufficient indication exhibited injother parts of the will to pass a fee simple. It is very evident, from the introductory clause, that the testator had no intention to die intestate; but that in this ease, as in almost all others, he supposed he was devising his whole estate. “And, as touching such worldly estate, wherewith it has pleased Grod to bless me in this life, I give and dispose of the same in the following inanner,” &c. An heir at law can only be disinherited by express devise or necessary implication. Hence, in the construction of a will of doubtful meaning, every fair intendment is to be made in favour of the heir at law: 7 W. & S. 284. This is agreed; but a direction in form in a devise to pay a gross sum or sums of money, enlarges the devise to an estate in fee simple, where there are no words of limitation. But where there is any express limitation of [155] the interest devised, a direction that the devisee shall pay pecuniary legacies, does not make his interest a fee simple. Now, although the introductory words would not of themselves he sufficient to enlarge the devise to a fee simple, yet, coupled with the devise to Sarah, it has that effect. The testator says: — “Item. I give and bequeath to my daughter Sarah, all the property she now claims in the house or about the farm; likewise $150, to be paid out of that part of my real estate willed to my sons Thomas and John: (that is to say) John to pay $50; $25 at the expiration of one year after my decease; the other $25 at the expiration of the next year. Thomas to pay $50 per year, according to the same manner. John pays his.” Here, then, is a plain direction to John to pay a gross sum of money out of the real estate devised to him, which of itself enlarges the estate; and, be it observed, there are no words of limitation restraining the legal effect of this provision. It is not to be supposed that the testator intended that the devisee should sustain a loss, as would be the case if the life-estate, which is possible, should expire before he was reimbursed the money he was directed to pay. Notwithstanding there are no words of inheritance, the intention must govern. Now, in this clause of the’ will, it is plain the testator supposed he had devised all his estate in the land to John. He directs him to pay the money out of that part of the real estate which he had willed to him. The necessary implication is, that he had devised his real estate; that is, all the interest, viz: a fee simple which he had in it. "When the word “ estate” is coupled with a devise of real estate, it is uniformly held to be a fee simple; and this is carrying out the intention of the testator, in ninety-nine cases out of a hundred. This point has decreased very much in importance since the act of the 8th April, 1833, 9th section, where the legislature wisely enacted that all devises of real estate shall pass the whole estate of the testator in the premises devised, although there be no words of inheritance or of perpetuity, unless it appear by a devise over or by words of limitation or otherwise, in the will, that the testator intended to devise a less estate.
The plaintiff having given evidence of the execution of the will by the subscribing witnesses, viz: by proving the handwriting of Samuel Cochran, and by the testimony of Charles Chessman, the defendants proposed to prove that Samuel Cochran, the witness to the will, in conversation with the witness said repeatedly that the testator was not in his right mind when the will was drawn and executed; that he regretted he had drawn it or had anything to do [156] with it, and that it ought to ho burned or destroyed. The evidence so offered was rejected by the court, and this forms one of the prominent points in the case. This testimony, if true, would be decisive of the plaintiff’s case. Its materiality cannot, therefore, be disputed. It is ‘equally clear that, had Cochran lived and been brought to the stand, it would have been evidence of the most overwhelming character: Cowdon v. Reynolds, 12 S. & R. 281. But it is said that inasmuch as he is dead, and his handwriting only proved, the evidence, from the accident of death, must be excluded. The opinion of the court is not without authority to support it, for the same point has been ruled in Stobart v. Dryden, 1 Meeson & Welsby, 615. The reasons on which the case was ruled are well summed up by Mr. Grecnleaf, in his valuable Treatise on Evidence, vol. 1, p. 216, § 126. Such testimony was overruled by the court, “ Because the evidence of the handwriting in the attestation is not used as a declaration of the witness, but is offered merely to show the fact that he put his name there in the manner in' which attestations are usually placed to genuine signatures, and the second chiefly because of the mischiefs which would ensue if the general ■rule excluding hearsay were thus broken in upon; for the security of solemn instruments would thereby become much impaired, and the rights of parties under them would be liable to be affected at remote periods by loose declarations of the attesting witnesses, which could neither bo explained nor contradicted by the testimony of the witnesses themselves. In admitting such declarations, too, there would bo no reciprocity; for although the party impeaching the instrument would thereby have an equivalent for the loss of his power of cross-examination of the living witness, the other party would have none for the loss of his power of re-examination.” That there is force in the reasoning of the court, I am not disposed to deny, although I cannot agree to the first reason assigned. It is not true at least in this state, where subscribing witnesses are not required to a will, that the evidence of handwriting in the attestation is offered merely as the declaration of the fact that he put his name there in the manner in which attestations are usually placed to genuine signatures. On the contrary, proof of the handwriting of a deceased subscribing Avitness is not merely evidence that he attested the will, but it is also proof of the sanity of the testator. It is cAÚdence of that assorted fact, because the principle of larv is, that no man would attest the will of any but a sane person of sound, disposing mind, memory, and understanding. On such evidence, without more, a will must be admitted to probate. It is in [157] effect the attestation of the witness that the testator was sane. In Hays v. Harden, 6 Barr, 409, it is ruled that proof of the handwriting of the subscribing witness to a will, when the witness cannot be called, is equivalent to his oath to the signature of the testator. On this point several cases have been ruled, some closely analogous, others directly in point. Indeed, I do not understand it to be denied, that you may give evidence of the general character of the witness for truth and veracity to impeach or lessen the weight due to the attestation. Nor can it be questioned, in this state at least, after the’ decision of the case of Crouse v. Miller, 10 S. & R. 155, in which it was held that where book entries were given in evidence on proof of the handwriting of a deceased or absent witness, his character either for truth or honesty might be impeached for the purpose of destroying their credibility. This, it is true, is not the very point, but it is analogous to the case in hand. It is admitted by Baron Parke that a contrary doctrine had been ruled in some cases in England, although very limited, as he says, indeed, in point of number. It was so ruled by Lord Mansfield, in Wright v. Littler, 3 Burrows, 1244; by Justice Heath at Nisi Prius; recognised and approved by Lord Ellenborough; and to this let me add, by Bayley, J., in Doe v. Ridgway, 4 Barn. & Ald. 55. He (the attesting witness,to a bond), Justice Bayley says, must have been called if he had been alive, and it would then have been competent to prove, by cross-examination, his declarations as to the forgery of the bond. Now the party ought not, by the death of the witness, to be deprived of obtaining the advantage of such evidence. The same may be said of 5 Bing. 435. The weight of authority at the time of the decision of Stobert v. Dryden, was all on one side, and opposed to the doctrine of that case, which evidently was ruled on the ground of the dangerous character of the testimony. In Lossee v. Lossee, Executors, 2 Hill R. 609, the Supreme Court of New York held that where an instrument is read in evidence on proof merely of "the handwriting of the attesting witness, the adverse party may give evidence of the witness’s bad character at the time of attesting, and show his subsequent-declarations that the instrument was a forgery. Chief Justice Nelson, who delivered the opinion of the court, cites many cases in which the same doctrine is held. The point came incidentally before the court in Fox v. Evans, 3 Yeat. 506. There the declarations of one of the witnesses to a will, who was out of the state and had not been examined, was properly overruled; but it is evident from the remarks of the court, that if his handwriting had been proved, evi[158] donee of liis declarations to impeach him would have been received. For when a party rests on his testimony, it is open to attack either by proof of his general character, or by proof of his repeated declarations. The same point has also been ruled in McElwee v. Sutton, 2 Bailey S. C. Rep. 128. There a deed was introduced on proof of the death and handwriting of one Yail, the attesting witness, whereupon the opposite party offered to show that Yail had frequenty said the deed had been ante-dated to protect the property from creditors. The evidence was rejected, and for this cause, among others, a new trial was awarded. O’Neil, J., who delivered the opinion of the court, after remarking that the presumption arising from the attestation- in question might be overcome, added: “ To do this nothing can be more satisfactory than to show that the witness himself had said, ‘ Although I witnessed the deed, yet I know it does not bear its genuine date, but was ante-dated to save the property.’ This is in effect a contradiction of the testimony which the law presumes him to give.” In North Carolina, where trespass was brought for killing a slave, it was held that the slave’s good character was admissible to repel the presumption of his improper conduct: Pierce v. Myrick, 1 Dev. Rep. 345. So in Gardenhire v. McDaniel, 2 Yerger, 23, and Vandyke v. Thompson, 1 Harrington, 109, the same point was- presented for decision in the case of deeds which had been proved by the subscribing witnesses and subsequently recorded; and it was in both instances determined that evidence of their bad character might be given for the purposes of showing the instruments were forgeries. In that class of cases the question becomes of primary importance: Yide notes to 2 Hill, 612, and 1 Meeson & Welsby, 615. From this array of cases, it must be agreed that on this side of the Atlantic at least, the weight of authority is decidedly in favour of the admission of the testimony. It is said that if any declarations, at any time, from the mouth of subscribing witnesses who are dead, are to be admitted in evidence, the result would be that the security of solemn instruments would bo much impaired. The rights of parties under wills and deeds would be liable to bo affected at remote periods by loose declarations of attesting witnesses, which those parties would have no opportunity of contradicting or explaining by the evidence of the witnesses themselves. I admit there is force in this view of the case, and that such testimony calls for vigilance and strict scrutiny, but I cannot agree that this is a reason for the exclusion of the testimony altogether, thereby, in many cases, destroying the possibility of exposing fraud, forgery, and villany of every descrip[159] tion, so apt to be practised on persons of weak understandings, particularly when debilitated by sickness and disease. It is better that we should incur the risk mentioned, than that we should sanction fraud and imposition. The remarks of Baron Parke show a distrust of courts and juries, and if pushed to an excess would be an argument against all testimony whatever, which we all know has and will continue to be abused; but that would be a flimsy reason for' excluding it altogether. Human testimony may be uncertain, yet its introduction is a necessity with which we cannot dispense. Courts and juries will make the necessary allowances so as to attain the ends of justice by extracting the truth from the attending circumstances. The result of this novel doctrine, for it is nothing less, it seems to me will be to produce this result, that a man who has a valid title to-day, by the accident of death will have none to-morrow. To obtain this questionable benefit it is hardly worth while to overturn a current of authorities establishing a different principle. And be it remarked, not a solitary case to the contrary has been bited on this side of the Atlantic. And that the admission of the evidence is better calculated to attain the ends of justice, would also appear from this, that the same principle must be extended to cases where the subscribing witness is out of the jurisdiction of the court. It is not difficult to see how easy it would be to spirit away a subscribing witness on the eve of trial, prove his handwriting, thereby giving full effect to his testimony, and then excluding all testimony of his repeated declarations, that the bond or will was a forgery or a conspiracy to cheat or defraud. Establish this doctrine, and we shall not be without instances of attempts to bailie justice by removing the witness, and thereby prevent the introduction of proof, which the guilty know would destroy their claim. I have, therefore, come to the conclusion we shall better attain the ends of justice by adhering to the law as established, than by adopting fanciful theories, although supported by the authority of some of the members of the Court of Exchequer of acknowledged ability and talents.
I now proceed to notice another point in the case. There were two subscribing witnesses to the will, Samuel Cochran and Charles Chessman. Charles Chessman was examined as a witness for the plaintiff. He proved that he signed the will as one of the subscribing witnesses, and that he saw the testator execute it. On that point there was no dispute: the matter in controversy was as to the sanity of the testator. On the latter point the result of his testimony was, that at the time the will was executed the testator was [160] not of sufficient capacity to dispose of iiis estate. After describing bis condition, which, if true, is inconsistent with the idea of a sound disposing mind such as the law exacts ; the witness says, “ At the time the Cochran will was written, I would not have dealt with him at all, unless I wished to have taken advantage of him.” This witness, be it remarked, had been examined before, and had given testimony at variance with this evidence. The question then is, whether, under this state of facts, the plaintiff ivas at liberty to examine him as to his testimony on a former occasion, and to give in evidence the testimony then given. And that he had this right is ruled in Cowden v. Reynolds, 12 S. & R. 281, and in The Bank of the Northern Liberties v. Davis, 6 W. & S. 289. It is true, as a general rule, a party who calls a witness shall not be permitted to discredit him, on finding his testimony is against him. But this rule admits of exceptions, of which this case presents an instance. On the authority of the cases cited, we see no objection to the course pursued in allowing the cross-examination of the witness, and in admitting proof of the evidence given by the witness when he was examined before. We see no error in permitting the plaintiff to examine the witness as to what he had testified to before, respecting the sanity of the testator, &c., nor in admitting in evidence the notes of the testimony of the witness on a former trial.
But then the question recurs, what Ayas the duty of the court after the evidence AVas given ? It Ayas to submit the whole evidence of the witness on this as well as on the former trial to the jury, and leave it to them to say whether the evidence proved that the testator Ayas sane at the time the will Ayas executed, with, however, a strong expression of opinion, that under the circumstances in which the Avitness had placed himself, very little credit ought to be attached to his testimony, whether given before or on this trial. But instead of pursuing this course, the court undertook to decide that his testimony was entirely repudiated, to admit evidence of the handwriting, and to give it the same efficacy as if the witness had been dead or out of the jurisdiction of the court. The court in the charge say, “ The plaintiff has contradicted his OAvn witness, and, I think, shown pretty distinctly that he is entitled to but little respect at tho hands of cither court or jury. The plaintiff discards wholly that part of his testimony Avhich speaks of the capacity of the testator, and in so doing, he utterly repudiated the whole of the testimony of the witness, ‘ for he cannot set up so much of his witnesses’ testimony as makes for him, and reject or disprove such as is of a contrary tendency.’ The Ayhole falls together, and his [161] testimony is thus entirely repudiated: 6 W. & S. 288. The testimony of Chessman being out of the case for any purpose available to the plaintiff, have we the requisite proof of this will by two competent witnesses? Chessman’s testimony being wholly discarded, I think he must be considered as standing in the situation of a witness whose testimony or attendance cannot be procured, and that the next best evidence must be resorted to, namely, that of proving his handwriting. One of the subscribing witnesses being dead, and the other unavailable, their handwriting must be proved; and if done to the satisfaction of the jury, the execution of the will is primá facie established, and the law requires no further proof on this point.” The idea that Chessman’s testimony was repudiated, is derived from an expression in The Bank of the Northern Liberties v. Davis, taken from Lowe v. Jolliffe, 1 Black, 363, but not there used in the sense attributed to it in the charge, and certainly not intended to justify the court in considering the testimony so much out of the way as to introduce secondary evidence of handwriting, giving the same all the effect it would have had, if he had not been examined in consequence of death, or being out of the jurisdiction of the court. The course pursued by the court was a wrong to the defendants, and it deprived them of the benefit of Chessman’s testimony, which, if believed, unquestionably proved that the testator was not in a fit condition to execute a will.
It is now contended the court erred in charging the jury that they may find the testator sane at the execution of the will, from his condition before and after that time. This point is predicated on the fact being found by the jury, that before and after the 24th September, 1844, there was a general imbecility or derangement in the mind of the testator. That he was deranged after that date, was proved by the most irresistible evidence; but whether before, is most strenuously denied. It is admitted on the part of the plaintiff, that John Hays was a man of weak intellect; but it is denied that he was a lunatic or of unsound mind until within a few months of his decease, when, it is coneeded by all parties, he was entirely deranged. In proof of his derangement before the execution of the will, the defendants gave in evidence a commission of lunacy, issued in December, 1844, and inquisition finding John Hays a lunatic, with lucid intervals, and that he had been a lunatic for forty years before that time. The defendants rely on the inquisition, with other proof, to support the allegation of general imbecility of mind. The inquisition is primá facie evidence of [162] the facts found by the inquest, but not-conclusive. And whether a general derangement is proved before the date of the will, is an important fact to be determined by the jury. The presumption of law is, that the testator is sane until the contrary is shown; but when a general imbecility of mind is proved, the burthen of proof is thrown upon the opposite party, who must show that it was executed in a lucid interval,' and when the testator had understanding and capacity sufficient to execute the will. Supposing the jury should believe that the testator was of unsound mind before the execution of the will, then the important question arises as to the nature of the proof the law requires. On this point, the court charged in effect, that if the evidence established the fact that there was a lucid interval both before and after the day of the date of the will, the jury was at liberty to say that he was sane at the time the will was executed, in the absence of proof of his situation on that day, even against the double presumption of the inquisition and the evidence. From this principle I take leave to enter my dissent. This principle is founded on the notion, contrary to the current of the decisions, that a lucid interval is presumed to continue; whereas it is well known, that a man insane may be well to-day, insane to-morrow, better the next day, and hopelessly diseased the third. To allow the jury to make such an inference would be most unsatisfactory, and may lead to great imposition on that unfortunate class of persons,who need so much the protection of the courts. Fraud would be the inevitable result, as the artful and designing would seize the projuer time, when the mind was jmostrated by disease, to obtain from them a disposition of their estate. The very fact that no evidence is given bearing on the act of execution, is sufficient to expose its dangerous tendency and its certainty to mislead. It certainly imposes no hardship to require that, under such circumstances, evidence of the most unexceptionable kind and character, bearing on the very act of disposition, and confined to the time of execution, should be given. Stringent rules only can protect persons placed in this melancholy condition. It is much better, in this country at least, Avhere the law makes an equal distribution of estates, that a person should die intestate, than to expose them to the risk of imposition and fraud, at the instance of persons interested to deceive them. In Harrison v. Rowan, 3W. C. C. Rep. 586, Washington, J., says, “The soundness of the testator’s mind is to be judged of from his conversation or from his actions, at the time the will is made, or from both taken together.” Again, he says, “ It must also be remembered that the [163] fact of competency is to be decided by the state of the testator’s mind when the will was made. And although evidence of the state of his mind and of his bodily health, before and after that time, may be given, in order to shed light upon its condition at that period, still such evidence is no otherwise to be regarded. For although it should be proved, that at a prior or subsequent day, he was incapable of making a will from the effect of a temporary cause — such as fever and the like — it will not follow that ho was so when the will was executed.” The converse of this proposition is equally true; for where a man is a lunatic, it does not follow he has a lucid interval from proof that he was sane before and after a certain period. To the same point is the case of Stevens et Ux. v. Vancleve, 4 W. C. C. Rep. 262. The only point of time, as is there said, to be looked to by a jury who are to decide on the competency of a testator to make a will, is that when the will was executed. Also, Lessee of Hoge v. Fisher et al., Pet. C. C. Rep. 163. In Dodge v. March, 1 Hag. 612, Sir John Nichols, speaking of a case in many of its features closely resembling this, says, unless the court is prepared to give up all the principles heretofore acted upon, it must demand the most decisive proof of the complete absence of influence and excitement at the preparation and making of this asserted will; it must require unimpeachable evidence of unbiassed volition and of clear capacity. It must, in fact, expect to be shown instructions coming from the deceased himself, and an execution in the presence of witnesses above all suspicion. It will be for the jury to say whether proofs of these indispensable requisites are or are not wanting at the time of the factum of this will. If the jury should believe that the testimony of Chessman does not clearly show that the testator was, at the very time of the execution of the will, of a sound disposing mind, memory, and understanding, it is an invalid instrument, and the plaintiffs cannot recover. The case depends on the testimony of the subscribing witnesses, who alone were present and know the state and condition of the testator at the time of the factum of the will. In connexion with tho question on the execution of the will, it was the duty of the court to charge, as they were requested, that if they believed the testator was of weak mind, and unable to read, the jury should be satisfied that he was acquainted with the contents of the will. It is not necessary for the devisee to prove to the jury that the will was read in the presence of witnesses. In general, this is to be presumed. But if the testator is blind or incapable of reading, or if a reasonable ground be laid for be[164] lieving it was not read to bim, or that there was fraud in the transaction, it is for the devisee to satisfy the jury that the will was read, or that the contents were known to the testator: Harrison v. Rowan, 3 W. C. C. Rep. 580.
We see no error in admitting in evidence the will of the 26th September, nor the testimony in relation to it, nor in asking Chessman whether John Hays was rational or otherwise, at the time Cochran was there to draw his will. The evidence had a bearing on the fact of sanity, which is a disputed fact in the case.
The counsel for John Harden complained that the court did not answer their second point. But, from the omission, they have received no injury. The court ought to have answered it in the negative; for, admitting all the facts to be as stated, it is no defence to the action, as was ruled in Reed v. Reed, decided at this term. If the defendants have a remedy, it is by action, and not by a detention of the possession.
Judgment reversed, and a venire de novo awarded.