The Chancellor.
The will in this case was made, and the testator died, previous to the revised statutes; but the will was proved before the surrogate, after the first of January, 1830, and before -the passage of the act of May, 1837, concerning the proof of wills, &c. (Laws of 1837, p. 524.) The formalities requisite to the due execution of the will, therefore, •were those which were required by the second section of the act of March 5th, 1813, concerning wills. (1 R. L. of 1813, p. 364.) But the mode of proof must be that which was prescribed by the provisions of the revised statutes which were in force when [51]*51the will was propounded for probate, before the surrogate, in 1835. The appellants’ counsel, in their first point, insist that in a proceeding before the surrogate to prove a will of real estate, under the provisions pf the revised statutes, all the witnesses to such will, who are living in the state and of sound minds, must not only be produced and examined, but that they must also corroborate each other as to the facts necessary to the valid execution of the will. In other words, that each witness must be able to show that all the requisites of the statute which was in force, at the execution of the will, were complied with. This question I will first proceed to consider.
The article of the revised statutes relative to wills of real property and the proof of them, as it existed in 1835, provided that upon proof being made of the due service of the notice of the application to prove a will of real estate, the surrogate should cause the witnesses to be examined before him, and should reduce the proofs and examinations to writing. And that all the witnesses to such will, who were living in the state, and of sound mind, should be produced and examined; and that the death, absence, or insanity of any of them, should be satisfactorily shown to such surrogate. (2 R. S. 58, § 12.) The thirteenth section directed that, when any one or more of the subscribing witnesses to the will should be examined, and the other witnesses wére dead, or resided out of the state, or were insane, then such proof should be taken of the hand-writing of the testator, and of the witness or witnesses so dead, absent, or insane, and of such other circumstances as would be sufficient to prove such will on a trial at law. The next section provided that if it should appear, upon the proof taken, that such will was duly executed, that the testator, at the time of executing the same, was in all respects competent to devise real estate, and was not under restraint, the will and the proofs and examinations so taken should be recorded, and the record thereof signed and certified by the surrogate. These were all the provisions of the revised statutes relative to the probate of a will of real property, where all or any of the subscribing witnesses were alive and could be examined. And in all such cases the al[52]*52lowing of’ probate, by the surrogate, and admitting the. will to be recorded) rendered the original will) or the record of the proof thereof, prima facie evidence of the due execution of such will; but subject to be rebutted' by contrary proof; (2 R. S. 58, § 15.)
It will be seen by reference to these several provisions of the revised statutes, which are substantially the same with those which were previously in existence, except as to the tribunal in which, the proof was to be taken, that nothing is- said as- to the necessity of each witness being able to prove that all the- formalities required by law were complied with, where- all the subscribing witnesses are alive and' in a situation to be examined. The statute only requires, in such cases, that it should appear from the proof thus taken, that the will was duly executed, by a testator who was competent to make' a will, and who was free from restraint. Even upon a bill filed to establish a will of real estate, and where the decree is to be- conclusive upon the rights of the heirs at law, the court of chancery does not require that each subscribing witness should-be-able to recollect,, and prove, that all the formalities of the statute were complied with. The rule of the English court- of chancery i's, that upon such a bill, 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 cross-examine- them as to the sanity of the testator, and the circumstances- attending the execution of the will. (Townsend v. Ives, 1 Wils. Rep. 216; Ogle v. Cook, 1 Ves. sen. 177; Hudson v. Kersey, 4 Burn. Eccl. Law, 102.) And the rule is the same upon the trial of an- issue of devisavit vel non, awarded by the court of chancery. (Booth v. Blundell, Coop. Chan. Ca. 136.) But I have not been able to find any case in which it- has-been held to be necessary that all* the. witnesses should testify-to- the-dire execution of the will; and that'the testator*was of sound and disposing mind and memory, at. the time of the execution thereof." On the contrary, in the case of Lowe v. Jolliffe, (1 W. Black. Rep. 365,) upon a trial at bar in the court of king’s [53]*53bench, on an issue of devisavit vel non out of chancery, the will was established, although all the Subscribing witnesses swore that the testator was utterly incapable of making' a will) or of transacting any other business whatever, at the time the will in controversy was supposed to have been executed. And all the subscribing witnesses in that case were subsequently convicted of perjury. (See King v. The Nueys & Galey, Idem, 416.) Our statute provides, in express terms, that if any one of the subscribing witnesses is examined, and the others are dead or incompetent, or out of the jurisdiction of the state, the will may be admitted to probate, upon proof of the handwriting of the testator and of the witnesses who cannot be examined, and of such other circumstances as would be sufficient to prove such will on a trial at law. I cannot believe, therefore, it would be a proper construction of this statute to reject the probate of a will, where all the subscribing witnesses are competent and are actually examined, upon the very narrow ground that some of them cannot, after ten years, recollect that all the requisites of the statute of wills were complied with. The next question for consideration, therefore, is, whether it appears, upon the proofs taken before the surrogate in this case, that the instrument propounded for probate as the will of William Jauneey, was duly executed as a will of real estate.
The second section of the act of March 5 th, 1813, in reference to the execution of wills of real estate, is the same in substance as the provision of the statute, 29th Charles 2d, c. 3, on that subject. And the decisions in the English courts, under the last mentioned statute, especially such as were made previous to our separation from the mother country, are proper to be taken into consideration, in determining the question whether the instrument propounded is proved to have been duly executed, according to the requirements of the act of 1813. The language of the last mentioned act is, that “ every such last will arid testament shall be in writing, and signed by the party making the same, or by some other person, in his presence, and by his express direction; and shall be attested, and subscribed in the presence of such party, by three or more credible witnesses, or such last [54]*54will and testament shall be utterly void.” (1 R. L. 1813, p. 364, § 2.) Two questions arose under the English statute, soon after its passage, which are to some extent involved in the decision of this case. The first was, whether it was necessary that the testator should actually sign the will in the presence of the attesting witnesses; and the second, whether it was necessary that he should publish it, as a will, in the presence of such witnesses. Both of these questions arose in the case of Peate v. Ougley, (Com. Rep. 197,) on the trial of an ejectment suit, before Chief Justice Trevor, some thirty years after the passage of the statute. And if the recollection of the witness was to be relied on, as to what actually occurred at the execution of the will, his lordship decided both those questions in the negative. Very little reliance, however, is to be. placed upon that case, as a judicial decision, upon either of the questions referred to. For it was, at the best, a mere nisi prius decision; and it appears to have been submitted to the jury, as a question' of fact, whether the provisions of the statute had been complied with. And, under the circumstances of that case, I think the jury were authorized to presume that the will was not only signed in the presence of all the subscribing witnesses, but that it was also published by the testator as his will, in their presence. Two of the witnesses were dead, and the survivor was examined twenty-seven years after the will was executed. It is hardly probable, therefore, after such a lapse of time, that he would recollect what occurred at the execution of the will. And the circumstances having passed from his mind, he might very naturally suppose he did not see the testator write his name to the will, or hear him tell the witnesses what the instrument was which they were called upon to attest the execution of. But the attestation clause, which was in the hand-writing of the testator, in that case, stated, that the instrument which the witnesses were called on to attest, was signed, sealed, and published as his will, in their presence.
In reference to the first question, however) the case of Lemaine v. Stanley, (3 Lev. Rep. 1,) and the case in Skinner, (Anon Skin. Rep. 227,) must have assumed the ground that [55]*55an actual signing of the will, by the testator, in the presence of all the subscribing witnesses, was unnecessary; though I think the first case was an erroneous construction of the statute, as to what a signing of the will by the testator really was. Indedependent of those cases, it has been deliberately settled, in England, for nearly a century, that the statute of 29th Charles 2d, chapter 3, did not require the testator to sign his will in the presence of the attesting witnesses, provided it was actually signed by him, previous to his acknowledgment and publication of the will in the presence of all or each of those witnesses.
In Stonehouse v. Evelyn, which came before Sir Joseph Jelcyl, the master of the rolls, in 1734, (3 Peere Wms. Rep. 253,) the proof was full that all of the attesting witnesses subscribed their names to the will in the presence of the testatrix. But one of them said he did not see her sign the will; but she owned, at the time the witnesses attested it, that her name, signed thereto, was her own hand-writing. His honor held that, without doubt, that was sufficient. And the reporter adds, that on the same day, he mentioned that decision to Justice Fortescue Aland, formerly a judge of the king’s bench, and then one of the justices of the court of common pleas, who said it was the common practice, and that he had so ruled two or three times, upon evidence, at the circuit; and that it was sufficient if one of the subscribing witnesses swore that the testator acknowledged the signature to be his own hand-writing. The question came before Lord Hardwicke, eighteen years after-wards, in the case of Grayson v. Atkinson, (2 Ves. sen. 454,) and he decided that it was not necessary that the testator should sign the will in the presence of the witnesses; but that an acknowledgment by him to the attesting witnesses that it was his hand, was sufficient. Two years afterwards, the case of Ellis v. Smith, (1 Ves. jun. 12,) came before his lordship, assisted by the master of the rolls, the chief justice of the common pleas, and the chief baron of the exchequer. And the question was there deliberately decided, that the acknowledgment of the testator, before the attesting witnesses to a will [56]*56previously signed by liimfwas equivalent to signing it before them, and was a good execution of the will Since this last decision, in 1754, the law appears to have been unquestioned in England, that under the statute of diaries 2d, it is not necessary to the validity of a will of real estate that the testator should have signed it in the presence of the subscribing witnesses. And this construction of tire statute appears to have been followed in this state, and in most of the states of the union which have adopted the language of that statute, in prescribing the formalities to be observed in the execution of wills.
It was also settled in England, at a very early day, that a will of real estate, attested by three witnesses, who at several times subscribed their names, in the presence -of the testator and at his request, was valid, although all the witnesses were never present at the same time. (Anon. 2 Chan. Ca. 109. Cook v. Parsons, Prec. in Chan. 184. Jones v. Lake, 2 Atk. 176, n.) It is at least doubtful whether the decisions upon either of these questions were in conformity with the intention ofthe framers of the provisions, in the statute of Charles, relative to the execution of wills of real estate. But they are in conformity with the letter of the statute, which only required that the will should be signed by the testator, but not that such signing should take place in the presence of the attesting witnesses. Nor did the statute, in terms, require the witnesses to attest the will at the same time, and in the presence of each other, but only that the will should be attested by three witnesses who should subscribe the same in the presence of the testator. These decisions had been so long acquiesced in as to have become a rule of property previous to the revolution. It is therefore too late to disturb them, in reference to any rights which had accrued under wills previous to the revised statutes; or even since, so far as the language of the statute has not been changed.
This construction of the statute having been established, the question naturally arose what it was that the subscribing witnesses to the will were to attest? the fact that the testator had actually signed the instrument, and that he re.cognized or publisl[57]*57ed it as his will, or only the fact that he acknowledged the execution of the instrument to which he requested them to subscribe their names as witnesses.; leaving the facts that it had been actually signed by him, or by his direction and in his presence, and that he intended it as .a testamentary disposition of his property, to be supplied by other proofs, if necessary? Upon a careful examination of the cases on this subject, in England, l am not prepared to say that the question as to the necessity of an admission of his signature, or of a recognition of the instrument by the testator as a will, to and in the presence of the attesting witnesses, at the time they signed their names to .such instrument as witnesses, was definitively settled there previous to our declaration of independence. But in a comparatively recent case, (The Trustees of the British Museum v. White, 3 Moore & Payne’s Rep. 689; 6 Bing. Rep. 310, S. C.) both branches of this question came before the late Chief Justice Tindal, and Ms associates, and were deliberately decided by them. The -case came up in the form of a special verdict found upon the trial of a feigned issue, of devisavit vel nan, out of the court-of chancery. Of course there was no room for presumption that the witnesses, or any of them, had forgotten the circumstance^ attending the execution of the supposed will. By the special verdict, it appeared that the mstrument, which upon its face purported to be the testator’s will, was all in his hand-writing, except the signatures of the subscribing witnesses; that immediately above their names there were written these words, in his hand-writing, “In the presence of us as witnesses thereto;” that the testator had signed it before it was signed by the witnesses, or either of them ; that about five months before Ms death he requested two of the attesting witnesses to sign their names to the instrument, and they did so. in his presence, but they did not see his signature, nor were they informed by him then, or at any other time, what was the nature of the instrument, or why they were requested to sign the same; that .about two months afterwards the testator requested the other subscribing witness» to sign Ms name to the instrument, wMch he immediately did in the testator’s presence, who then inform-[58]*58ed him that it was his will; and that the testator was of souncl and disposing mind and memory, at the time he signed the paper himself, and also at the times when the witnesses signed then names to the same. The court, upon a full argument, and after taking time to examine the questions raised, decided in favor of the validity of the will. The question again came before that court, about two years afterwards, and in substantially the same form, in the case of Wright v. Wright, (5 Moore & Pay. Rep. 316,) upon an issue ordered by the vice chancellor. But the court informed the counsel for the defendant that they intended to adhere to the decision in the case of White v. The Trustees of the British Museum; and that if the defendant was not satisfied with it, he could appeal to a higher tribunal, as the question was open to him upon the record.
I am not prepared to go the whole length of these last two decisions. For they establish the principle that, under the statute of Charles, an instrument may be a valid will of real estate, although neither of the subscribing witnesses, at the time they attested its execution, knew or were informed that it was a will, or that it had been signed by the alleged testator, or by any one for him, so as to make it a valid will upon its being duly attested or signed by the necessary number of witnesses. What do the witnesses attest in such a case, where they are entirely ignorant of what the testator is intending to do, or what he has done, or what is the object of obtaining their signatures to the paper which is presented to them for that purpose 1 Certainly nothing. For they neither attest the instrument as a will, which the testator has in .fact, though without their knowledge, already signed, nor the fact that he has signed the instrument in then presence, nor that he has admitted to them that it had been signed by him before that time. Surely the attesting witnesses should see the testator, or some one for him, sign the instrument which they are called upon witness; or the testator should either say or do something, in their presence or hearing, indicating that he intends to recognize such instrument or paper as one which has been signed by him, as a valid will, or as having been signed [59]*59by his authority for the purposes therein expressed. At the same time, I do not deem it necessary that the testator should in terms declare that his name, signed to the will, was so signed by him, or that it was so signed by his authority and direction, and in his presence. But the production of the will with his name subscribed to it, and in such a way that the signature could be seen by the attesting witnesses, and the request of the testator that they should witness the execution of the instrument by him, or as his will, would of itself be a sufficient acknowledgment of his signature to render the will valid, under the provisions of the act which was in force when this will was made. (See Devisees of Eelbeck v. Granberry, 2 Hayw. Rep. 232; Hall v. Hall, 17 Pick. Rep. 373; Cochran’s will, 3 Bibb’s Rep. 494; Ilott v. Genge, 3 Curt. Eccl. Rep. 172.)
It is a very different question, however, whether, to sustain and establish the validity of a will, the courts should hold it to be necessary for the subscribing witnesses to recollect and testify to the fact that all the formalities prescribed in the statute were actually complied with. For if this were required, very few devises of property would be supported unless the testimony of the witnesses was taken and perpetuated very soon after the wills attested by them were made. This, in many cases, would be wholly impracticable; as the testator frequently lives many years after he has executed his will. And where there is good reason to suppose the will has been duly executed, and that no fraud or want of testamentary capacity existed at the time it was made, justice to the dead as well as to the living, requires that the declared wishes of the testator should not be defeated by the imperfect recollections of the attesting witnesses; or by reason of their deaths or removal beyond the jurisdiction of the state. It is for this reason that the most liberal presumptions, in favor of the due execution of wills, are sanctioned by courts of justice, where from lapse of time, or otherwise, it may be impossible to give positive evidence on the subject. A will may, therefore, be sustained even in opposition to the positive testimony of one or more of the subscribing witnesses, who, either mistakenly or corruptly, swear that the formalities re[60]*60quired by the statute were not complied with, if from other testimony in the case the court or jury is satisfied that the contrary was the fact. And where any of the witnesses are dead, or in such a situation that their testimony cannot be obtained, proof of their signatures is received, as secondary evidence of the facts to which they have attested by subscribing the will as witnesses to the execution thereof. 'The same rule is frequently applied to the case of a subscribing witness who is called and sworn, but who, from defect of memory, has no recollection of the transaction except that his signature to the will is genuine. The decisions which have a bearing upon the question, whether the evidence, in this case, was sufficient to establish the fact that the testator subscribed and published the instrument propounded as his will, or recognized the same as having been signed by him, in the presence of the three subscribing witnesses who signed their names in his presence, are very numerous; and it may be useful, in considering that question, to refer to some of them.
In the case of Hudson’s will, (Skin. Rep. 79,) which came before the court of king’s bench, on a trial at bar, only five years after the statute of Charles, the will was established against the testimony of two of the subscribing witnesses, who swore the testator did not execute the will, he being incapable of doing so, and that his mark was affixed by another guiding his hand, and that-he said nothing; the court and juiy being satisfied from other evidence, that the will was duly executed. In the case of Hands v. James, (Comyn's Rep. 531,) where the witnesses to the will were all dead, it .was left to the jury to.presume that they subscribed as witnesses in the testator’s presence; although that fact was not stated in the attestation clause. And that decision was followed in the subsequent cases of Croft v. Pawlet, (2 Stra. Rep. 1109,) and of Brice v. Smith, [Willes’ Rep. 1.)
Previous to the English statute of July, 1837, (1 Vict. ch. 26,) for the amendment of the law with respect to wills, very few cases arose before the ecclesiastical courts, in England, calling for a construction of the laws relative to the execution of wills of real estate. But that statute requires the same formalities to be ob [61]*61served in the making of wills of personal property as of real estate. The ninth section of the act requires that the will shall be signed at the foot or end thereof, by the testator, or by some other person in his presence and by his direction, and that such signature shall be made, or acknowledged, by the testator, in the presence of two or more witnesses present at the same time, and that such witnesses shall attest and subscribe the will in the presence of the testator. And since the passage of that statute, several cases, involving the question as to what evidence is requisite to establish a will under its provisions, have come before Sir Herbert Jenner Fust, the official principal of the arches court and judge of the prerogative court of Canterbury. Although the decisions of that very able and distinguished judge and civilian, are of no higher authority here than those of judges of other courts in England, and in our sister states, having the same experience and knowledge in testamentary cases, they are entitled to great consideration, as judicial opinions upon the examination and decision of the question now under consideration. It will be recollected that the statute, 1 Viet, ch. 26, requires that the signature of the testator shall be made or acknowledged by him in the presence of two or more attesting witnesses, present at the same time. And the decisions of Sir Herbert Jenner Fust to which I shall refer, are mostly upon the question whether these requirements of the statute had been complied with, in making the wills propounded for probate.
In Chambers & Yatman v. The Queen’s Proctor, (2 Curt. Eccl. Rep. 415,) which came before the prerogative court, in May, 1840, there were three witnesses to the will. One of them swore that it was signed by the testator in the presence of all of them, and that he then put his finger upon the seal, and said, “ this is my act and deed,” and then they witnessed it as a will, in his presence. Another testified to the acknowledgment of it as a will, but could not recollect that the testator signed it in her presence, or that he said any thing about his signature to it. And the third swore that he did not see the testator sign the will, but that there were a signature and a seal affixed to it; and that when they w,re requested to wit[62]*62ness the will, the testator pointed to the seal where his name was already written. The counsel for the crown contended that the will was not executed in conformity to the statute; as two of the witnesses swore that the will was not signed in theipresence, and there was no direct acknowledgment of his signature, as such, by the testator. But the learned judge declared he was satisfied, from the evidence, that the will .was signed by the testator in the presence of all the witnesses, and that two of them had forgotten the fact. And in the case of Gove v. Garvin, (3 Curt. 157,) which came before the same court, two years afterwards, the same learned judge pronounced in favor of the due execution of a will, upon proof by the scrivener, who drew and witnessed the will, that it was signed by the testator, in the presence of him and of the other witness ; although the latter, who was not examined until two years after the will was made, was confident that the will was not signed by the testator in his presence, and that nothing was said about his signature.
In the case of Ilott v. Genge, (Idem, 160,) decided in the same year, the probate of the will was rejected; the testator, at the time he requested the witnesses to put their names to it, having carefully concealed the writing, so that they did not see his name; and having neither signed it in their presence, nor told them it was signed by him. In that case, however, Sir H. J. Fust admits there may be a virtual acknowledgment of his signature by the testator. He says, “ it is not necessary that the testator should state to the witnesses that it is his signature; the production of a will by the testator, it having his name upon it, and a request to the witnesses to attest it, would be a sufficient acknowledgment of the signature, under the present statute.”
In the case of Gaze v. Gaze, (Idem, 451,) before the same court, in March, 1843, the testator produced to the attesting witnesses a will, all in his own hand-writing, having his name and seal affixed, and requested them to sign their names under his, or “ down here,” pointing to a place just below his own name and seal. And the court held that this was a sufficient acknowledgment of his signature, by the testator; although [63]*63there was no certain evidence that the signature was in the testator’s hand-writing, and only one of the witnesses knew that it was a will when they were called on to attest it. The case of Blake v. Knight, (Idem, 547,) came before the same court about two months afterwards, and a similar decision was made. In that case the three attesting witnesses were examined; and the substance of their testimony was, that the decedent did not sign the will in their presence, nor formally acknowledge his signature to them, nor did they recollect to have seen his signature ; that the first witness received notice that he, and his son and his apprentice, the three attesting witnesses, were wanted by the decedent to witness his will, and they went, to his room accordingly; that he there produced the will, which was written on one side of a sheet of paper, and spread it out upon the table, before them, and said: “This is my will; it is a small will, Avritten on one sheet of paper and all on one side; Avill you witness it ?” and that they then subscribed their names to it as witnesses, in his presence, no other person being in the room. It further appeared, that the testator had formerly been a Avriter in an attorney’s office, and that the will was in his oAvn handwriting ; the attestation clause, upon its face, being in such a form as to show that all the provisions of the recent statute had been complied with, in executing the will. His honor said he had not a doubt that the name of the testator was signed to the Avill before the witnesses attested it, any more than if they had positively sworn to the fact, and that the memory of the witnesses had failed them, the transaction having taken place more than four years previous to their examination; that the court could not safely trust to the memory of witnesses under such circumstances, but must attend to the facts of the case, and say whether it was satisfied that the name of the deceased was to the will Avhen the witnesses signed, whether signed in their presence, or signed beforehand and acknowledged in their presence. He therefore pronounced for the validity of the will. The like decision was made by him in July, 1843, in the case of Keigwin v. Keigwin, (3 Curt. 607.) There the two subscribing witnesses testified that they Avere at work in the house [64]*64of the testatrix; that on the day of the date of the will, she Brought a paper into the room where they both were, which they identified as the instrument propounded for probate; that she brought a pen and inkstand with her, and said to them, I want you to sign this paper,” and pointed to the place where they were to sign; that the paper was folded so. that they only saw her signature, .which was then affixed to it; that they both subscribed it accordingly in her presence; that they had no recollection of her having pointed out her signature to them, as Being her name, but they were certain she did not say any thing in particular about her hand-writing. The. will had been prepared at the request of the testatrix by a friend, and left with her; and he dated' it on that day because she told him she should have some men to work for her at that time who could attest its execution. His honor said the will was executed according to the requirements of the statute, and that there was a sufficient acknowledgment of her signature; that it was not necessary for her-to say in express terms, “’that is my signature ;” but it was sufficient if it clearly appeared that the signature was existent on the will when she produced it to the witnesses, and was seen by them when they did, at her request, subscribe their namés as attesting witnesses. In the case of Cooper v. Bockett, (dem, 648,) which came before the same judge a few days afterwards, he decided in favor of the will, upon the fácts testified fo by the attesting witnesses, and the appearance of the will itself which, was all in the hand-writing of the testator, although both- subscribing witnesses, two ignorant servants in the house, thought the-testator’s name had not Been subscribed to the will when their subscriptions were made. I'have doubts as to the correctness of this last decision, however, if the learned judge was right in supposing, that; under the recent. English statute;, the signing of the testator must actually precede the subscriptions of the witnesses, and that it is not sufficient for him to sign the. will the moment after, in their presence and under their cognizance. For the impression which the testimony in that case makes upon my mind, as to the matter of fact, is that immediately after the witnesses had [65]*65subscribed their names, the testator took the pen and wrote his own name, saying to them at the same time, “ this is my name in your presencewhich any testator, who was ignorant of the previous decisions of the court upon the question, might have supposed was the same thing as if he had signed his name the instant before the witnesses subscribed theirs. It may also be remarked, in relation to the last case, -that the witnesses must have been examined within four or five months after they attested the execution of the will, which is also a circumstance in favor of the probable accuracy of their recollections as to what actually took place. But a wrong conclusion, by a judge, upon a matter of fact, does not detract from the value of his opinion upon a question of law which is involved in his decision ; unless the legal principle decided by him would, if established, have a tendency to lead the mind to wrong conclusions as to matters of fact.
I have intentionally omitted to refer to several other cases in the prerogative court, which are to be found in Cuitéis’ Reports, having a bearing upon the question now under consideration, because they arose upon summary applications, and were decided ex parte. The only other case, in that court, to which I shall refer, was decided upon contestation, in June of the present year. It is the case of Le Bas v. Gregory & McCullock, (10 Lond. Jur. Rep. 718;) and it contains a reiteration of the principle embraced in the previous decisions, which I have stated more at length. I only refer to it, therefore, to show that down to this time the opinion of Sir Herbert Jenner Fust remains unchanged, that where there is an infirmity in the recollections of the attesting witnesses,- to a will, as to what took place at the time of its execution, the court does not require positive and affirmative evidence that all the formalities required by the statute were complied with; but that it will look at all the circumstances of the case, in forming its conclusions of fact on that subject. It also may be. fairly inferred from this recent decision, that none of the numerous decisions in the prerogative court to which I have referred have been overruled or questioned in the court of appeals; which is the judicial committee of [66]*66the privy council. The case of Hudson v. Parker, (1 Rob. Eccl. Rep. 24; 8 Lond. Jur. 786, S. C.,) decided by Dr. Lushington, in July, 1844, and referred to by the counsel for these appellants, upon the argument in the present case, is not in conflict with any of the decisions of the learned judge whose seat Dr. Lushington temporarily occupied; although he evidently doubts the correctness of the decision of the court of common pleas in the" case of White v. The Trustees of the British Museum.
"The cas.es in our own country are also in conformity to these decisions in the ecclesiastical courts in England. In Jackson v. La Grange, (19 John. Rep. 386,) the question arose, as to the due execution of a will, after a lapse of twenty-five years. One subscribing witness was dead. Another, who was exam- ■ inéd upon the trial, proved his own signature as a witness, but could not recollect whether all -the subscribing witnesses were present. Nor could he remember any of the circumstances ’attending his own attestation, or the execution of the will by the ■testator; but he presumed it must have been executed in his presence, from- the fact that he had witnessed it. It appearing that the other surviving witness was alive and within the jurisdiction of the court, it was very properly held that he should have been cálled and sworn. But the "late Chief Justice Spencer, who delivered the opinion of the court in that case, said, if the third witness had been called and his recollection had also failed him, still if he could have proved his signature, it would, upon proving the signature of the testator, have been sufficient proof of the due execution "of the will to entitle it to - be read in evidence; that the law did not require impossibilities, and where a will had been executed a long time, it was not ordinarily to bé expected that the ■witnesses would be able to remember all the material facts.
In the case of Pate’s adm'rs v. Joe, (3 J. J. Marsh. Rep. 113,) in the court of appeals of Kentucky, the question arose upon an appeal from a decision of a county court, admitting -the will of T. Pate to be recorded, as fully proved. The testator, who lived in' Kentucky, went' to Virginia, and' on -his return was taken sick and died on the road. He fell in company wHh [67]*67•William Compton and his family, consisting of his wife Polly and his brother Elias E. Compton, and travelled with them; and, being too unwell to ride on horseback, he got into their wagon and rode there. On the night the will was written, he complained of being very sick, and expressed a wish to get to a house where he might write or have a will written. When they stopped a room was procured, and Elias E. Compton was engaged in writing a will for him. The instrument produced for probate was in the hand-writing of Elias, who was then dead, and the name of the testator was also in the same handwriting. And the will was attested by William Compton and his wife, and by his brother Elias; only two subscribing witnesses being required by the laws of Kentucky. The signatures of the two brothers were in their own hand-writing, but the name of Mrs. Compton, the third witness, was subscribed by her husband. She was examined as a witness, several years after the occurrence, but could recollect nothing of the circumstances except that Pate was sick, and rode in their wagon, and was left on the road. Her husband stated that he had no recollection of having signed his name to the will as a witness, nor any recollection that it was acknowledged before him by Pate, or of seeing his brother write the name of Pate, or that the latter gave any directions to his brother to sign the will for him. He further stated that his habit was never to witness any instrument without seeing the party executing it make his signature, or hearing him acknowledge the instrument; from which circumstance he supposed Pate acknowledged the will in his presence, or he would not have attested it. But under what circrimstances he witnessed it he could not recollect; nor had he any recollection of the fact of his signing his wife’s name to the instrument as a witness, but he should not have done so without her consent. The will liberated the testator’s slaves, when they should attain certain ages; and it fell into the hands of one of the testator’s sons, after his death, and was produced by the son, on his being called upon to do so by a bill in chancery. Upon these facts the court of appeals decided that the will was sufficiently proved; and affirmed the, decision [68]*68of the county court admitting it to probate. (See also Bailey v. Stiles, 1 Green's Ch. Rep. 221; Jackson v. Van Dusen, 5 John. Rep. 144; Givin v. Radford, 2 Litt. Rep. 137; Alsey Howard's will, 5 Monroe's Rep. 199.) The case of Burwell v. Corbin, (1 Rand. Rep. 131,) cited by the counsel for the appellants, was a decision by a divided court; and was virtually overruled in the subsequent case of Dudleys v. Dudleys, (3 Leigh's Rep. 436.) And Judge Cabell, who concurred in the decision in the case of Burwell v. Corbin, admitted that the ground upon which he, and two other members of the court, proceeded in that case was wrong; and that their decision could only be sustained upon the ground that the case came before them in the shape of a special verdict, and that even then it should have been sent back for a new trial. The principle of the several decisions which I have referred to, upon the branch of the case now under consideration, remains unshaken b.Y-any conflicting decision of sufficient weight to induce me for a moment to doubt the correctness of such principle.
Applying that principle, to the testimony of the witnesses to this will, I think the evidence was sufficient to authorize the surrogate to find and declare, as a matter of fact, that the instrument propounded was duly executed, by William Jauncey, as a valid will of real estate. There is no pretence that the testator was not in the full possession of all his mental faculties, and perfectly competent to make a testamentary disposition of his estate, with sense and judgment. It does not appear who drew the will. For although it is stated in the answer to the petition of appeal and revivor, that it was wholly in the testator’s hand-writing, that fact was not in evidence before the surrogate, and therefore ought not now to be taken into consideration, in determining the question whether he decided correctly upon the evidence before him. But it. clearly appears that the testator had in his possession a will, properly prepared for execution, purporting upon its face to dispose of property, to a large amount, in this country and also in the English funds; that when he was alone with his barber, he produced this instrument, and re[69]*69quested the barber to stay and witness his signature to it; and dial he went to the door of his room and called for the two other subscribing witnesses, who were servants in the house, to come into the room. And he particularly inquired for James A | ps, who, as it subsequently. appeared, he had understood was intending to return to England, and who, as he said, would be handy to prove his signature there. All this denotes care and deliberation; and shows that the testator himself perfectly understood what he was doing, and that he was undoubtedly aware what was necessary to be done to execute the instrument, produced by him, as a valid will of real and personal estate. It does not distinctly appear whether the testator’s name was signed to the will in the presence of Jones, who was the first witness, or had been previously signed to it. But that it was actually there, when Jones attested the will, is evident from his testimony. For he says that the testator, putting his finger on the signature and seal, declared that he acknowledged the instrument as his hand and seal, for the uses and purposes therein mentioned. Jones then subscribed his name as a witness, in the presence of the testator. The other two witnesses Icame in while Jones was there, and he thinks they also signed 'their names, as witnesses, in his presence. Jones, who was examined some' ten years after the transaction, and when he was about seventy-seven years old, thinks he did not know, at the time the instrument was executed, that it was a will; nor until a year or two afterwards, when the testator told the witness he wished to remind him that he was a witness to his will. That the witness is under a mistake in supposing he did not know that it was the testator’s will, at the time it was executed, is evident from the testimony of Robinson, the coachman ; the last attesting witness. For he says Jones and Apps were both present when he witnessed it; although he did not see them sign their names, as their names and the name of the testator were there before he came into the room. But he says that when he attested it in their presence, the ¿testator put a pen into his hand, and acknowledged and declared the instrument to be Ais will; and. requested him to sign his name [70]*70thereto as á subscribing witness, and he did so in the testator’s presence. The testator át the same time remarked, that James Apps, one of the witnesses, was going to England, and would be handy to' prové the will there, in case it should be necessary. The recollection óf Jamés Apps, the grooni, appears to be still more indistinct than that of Jones, ás to the particulars of the transaction; for he does not remember that any other person than Mr. Jauncey was in the room while he was there. But he doés recollect, and testify, that some one told him Mr. Jauncey wanted him in the parlor, that he went up, and he believes that the testator asked him if he was James, and he said yes; that the testator then pointed to a paper ón the table,' and requested him to sign his name to it as a witness,' under that of Jones, áñd he did so, in the testator’s presence; arid he believes the testator told him, before he left the parlor, that the paper was his will. He also says the testator observed that lie understood the witness, was going to England, and if so he would be handy to prove his signature there, as he probably might be wanted for that business in England. Although this witness does not recollect the fact, I have no doubt, -from his testimony and that of the other two witnesses, in connection with the circumstances to which I have before referred, that the same formality of acknowledgment was gone through with, when Apps was asked to witness the will, as when Jones and Robinson withesséd it; and that, át the time they attested the instrument, all the subscribing witriessés understood it was the testator’s will which they wére attesting by their signatures; and that the testator intended to admit that he had signed, sealed, and published it as such.
The sentence anil decree of the surrogate, admitting the will tó probaté, and to be récorded ás á valid will of real estate, and the order of the circuit jüdge of thé first circuit, affirming súch sentence, must, therefore, be affirmed, with costs.