GOLDTHWAITE, J.
1. In the course of the argument, it was insisted, on the part of the defendants, that many of the points relied on by the complainants, are not put issue by the allegations of the bill, and, therefore, ought not to be considered. The weight of the objection to the form of the bill, will be best ascertained byr an examination of the statute, which gives to the Court of Chancery the jurisdiction of a contested will, and also by a consideration of the changes which this statute made in the law as previously understood.
The jurisdiction is conferred by the 55th section of the act of 1806. This provides that, “ within five years from the time of the first probate of any will, any person interested in such will, may, by bill in Chancery, contest the validity of the same; and the Court of Chancery may thereupon direct an issue or issues in fact to be tried by a jury, as in other cases; and in all such trials, the certificate of the oath of the witnesses, at the time of taking the original probate, shall be admitted as evidence to the jury, to have such weight as they may think it deserves ; but, after the expiration of the said five years, the original probate of any will shall be conclusive and binding on all parties concerned; saving however, to infants, femes covert, persons non compos mentis, or absent from the territory, the like period of five years from and after the removal of their respective disabilities.” [Aik. Dig. 450, S. 15.]
That this enactment extends the previously recognized jurisdiction of Chancery, is evident, because in England at this day the heir at law is not allowed to sustain a bill which seeks, merely to set aside a will of real estate. The reason why Chancery there declines jurisdiction of such- a case, is, because the heir has a perfect and complete remedy at law, by the action of ejectment, in the defence of which the devisee derives no aid whatever from the probate of the will before the Ecclesiastical Court. Jones v. Jones, 3 Merrivale 161; So, likewise, a bill is never entertained to set aside a will of personal estate, but the parties interested, are left to contest the probate in the Ecclesiastical Courts. Archer v. Morse, 2 Vern. S; Sheffield v. The Duchess of Buckinghamshire, 1 Atkyn’s 630 ; Plume v. Bulle, 1 P. Wms. 388 ; The cases in [234]*234which the heir -at law, and next of kin, are permitted to go into Chancery, are those-in which it is necessary to apply for an injunctio'n, or for the -appointment of a receiver, to prevent •waste or avoid injury, during the pendency of the contest" in 'the proper Courts; but the final decree, even in -such cases, is always predicated on the result of the controversy in those Courts. [Andrews v. Powis, 2 Bro. P. C. 476; Jones v. Jones, 3 Merrivale 176.] It is true, that the jurisdiction of Chancery to- set aside a will for fraud, was formerly asserted and acted on, by some English Chancellors, but it is believed to have been uniformly disavowed since the case of Kenrick v. Bransley, 3 Bro. P. C. 358, in which a decree of Lord Chancellor Macclesfield, setting aside a will for fraud, was reversed by the house of Lords, for the reasons, that the validity of the will could not be determined, as to personal estate, in the Ecclesiastical Courts, and as to real estate, by the Courts of common law. See, also, the cases collected by Mr. Fonblanque’. Trea. on Eq. Book, 1, Sect. 3, note U., and the case of Mariott v. Mariott, 2 Strange 606.
But, notwithstanding, the Court of Chancery declines the power to determine the question of will, or no will, it is the common practice in England, to go into that Court to establish' a will of real estate against the heir at law ; and after the validity of the will is tested by the trial of an issue devisavil vel non, the'decree is predicated on the result. This jurisdiction, however, is exercised, as in bills of peace, to suppress interminable litigation, and to give security and repose to titles. [2 Story Eq. 672.
Undoubtedly, the devisee in England, may "establish his title by an action of ejectment; but in this, as in an issue of devisa-vit vel non, he is bound to establish the will under which he -claims, by witnesses, because the probate gives it no effect as to real estate.
As to personal estate, the will derives its potential force solely from the probate, without which the executor is unable to sustain an’action. This probate, by the practice of the Ecclesiastical Courts of England, may be in two forms, of which one is called the common, the other, the solemn form. The first is, when the will is not contested, then, the executor may [235]*235prove it by his own oath; the latter is, when the will is controverted, and the proof is then, by witnesses examined as in a contested suit. Swinburne, 448, 449; 4 Burns’ Ecl. Law, 171, 172. The diiference in the forms of proving the will is, that if it is proved in common form only, the executor can be compelled, by the next of kin, to prove it in solemn form, at any time within ten years, according to Swinburn, and thirty years, according to Goldolphin, who considers the text of Swinburne, as a misprint. Swin. 449; God. O. L. 62; 4 Burns’ Ecl. L. 171, 172.
From this statement of the law, as it existed unaffected by statutes, it will be seen, that there were many and important distinctions between wills of real and personal estate, both with respect to the manner by which they could be established, and the mode by which they might be controverted. Our statute of 1806, seems to have been intended to provide a common mode, by which wills, of either description, may be established in the first instance. This view is strengthened by recurring to its 12th and 15th sections; the former of which, authorises the probate of the will in any country, where the lands devised are situate, when the testator had no known place of residence within the State; and the latter provides for the custody of the will, after its probate, in the Register’s office. Both of these clauses are incompatible with the idea that no change was intended as to wills of real estate and the latter seems to be conclusive, that a copy of the will, with the probate, may be used as evidence m other Courts.
2. The 55th section of the statute also provides a new mode, by which the heir at law, or the next of kin, can contest the will in such a manner, that one suit will be conclusive and final; and for this purpose, has invested the Court of Chancery with the jurisdiction, authorising it to call in aid the assistance of a jiiry, as in other cases.
3. The last change, introduced by the section, is, to provide a period of limitation, much shorter than before was known, after which the will admitted to probate, ceases to be thesubject of controversy and becomes entirely conclusive on all parties interested.
[236]*2364. If the probate first obtained, is to be prima facie evidence of the validity of the will when subsequently contested, then it is evident that the heir at law, and next of kin, would be placed in the peculiar position of being called on to establish a negative, which always would be highly impracticable, and, oftentimes, wholly impossible ; but such a construction is not called for by any clause in the statute, and is, impliedly, at least, contradicted by the provision, that the certificate of the oath of the witnesses, shall be evidence before the jury on the trial of an issue, to have such iveight as they may think it deserves. The opportunity afforded by the statute, to the heir at law, and next of bin, or others concerned in the will, to contest it in Chancery, after it has been admitted to probate in the County Court, seems to be given in place of the proof in solemn form, as previously practiced in the Ecclesiastical Courts, when the will was of personal property, and of the action of ejectment in a Court of common law, when the will was of real estate.
5. This being, in our opinion, the proper construction, the investigation in Chancery, must be governed by the same rules and laws which prevailed in similar investigations in the other Courts, which have been named, except so far as the statute provides a neto rule.
6. In either of these Courts, the person claiming under the will, is placed in the situation of an actor, and is bound to support the will affirmatively. It is true, that, under the statute, we are considering, the heir at law, or next of kin, is, necessarily, the complainant; but his condition is such, that, after establishing his heirship or kinship, he occupies precisely the same position as the heir at law, when he is the plaintiff in an ejectment, or the next of kin, when he seeks to call in the probate, in common form, of a will. Such being the condition of a complainant under the statute, nothing is necessary in his bill, more than to alledge the title, by which he has the right to investigate the probate, and a prayer for relief. If he requires a discovery, or the circumstances of the case require an injunction, or the appointment of a receiver, the bill may be framed with a view to such circumstances. The bill now before us contains the necessary matter to conform to this view, and [237]*237therefore, is considered sufficient to put the defendants on proof of the will.
The answer very properly avers every fact and circumstance, which is considered, even by the complainant’s counsel, necessary to .constitute a good nuncupation, if we except the roga-lio testium, which, although averred in the answer, is not stated in the will, as reduced to writing.
7. Whether this is required to be committed to writing, as a part of the will, is next be to be examined; but, before proceeding to this point in the case, it may be proper here to remark, that we do not decide that probate of a will is necessary to enable a devisee to maintain or defend an ejectment. It is apparent, that no such question is presented by the facts of this case, and there are many views connected with it, which render it important not to be discussed, untilinvolved in some case actually before the Court, We may add, that the question adverted to, has been decided by the Court of Appeals, of Virginia, in Bagwell v. Elliott, 2 Rand. 190; and in which case a construction is given to a body of statutes not materially variant from our own.
8. It is very clear, by the terms of the statute, that the validity of a nuncupative will does not depend on the fact of its being reduced to writing, either before or after the death of the testator, unless the probate is deferred for a longer period than six months, after the words were spoken. The fifth section of the act of 1806, directs “ that, after the expiration of six months from the time of speaking any pretended testamentary words, no testimony shall be received to prove the same to be a nun-cupative will, unless such words, or the substance thereof, were reduced to writing, within six days after speaking the same.
If then, the testimony is received within six months, there is nothing which prohibits the establishment of the will, although it may never have been reduced to writing. If the objection of the complainant’s counsel to the will, on this ground, is good for any thing, one cannot fail to perceive, that it goes to the whole will, and not merely to the omission to commit the roga-tio testium to writing, because, the evidence in the Court of Chancery, was taken after the expiration of six months, and the will, certainly, was not reduced to writing, within six days after [238]*238the words were' spoken-; the original- probate was had, however, within six months after the speaking of the testamentary words. From the section which we have just now recited, some may suppose, that it was intended never to permit any evidence to be given', respecting any nuncupative will, after the expiration of six months; but such a construction would be manifestly absurd when applied to the provisions of the fifty-fifth section; because, it- is evident, that a nuncupative will may be proved within six months, although it may not have been reduced to writing, within six days after the words- were spoken. Therefore, if the literal terms of the fifth section must be conformed to, and no evidence can be given after six months, in such a case, the next of kin-has only to wait the expiration of this period, and then he can successfully contest the will in Chancery, which was previously properly admitted to probate in the' County Court. This would be in effect, to change the enactment, and make it, that no nuncupative will shall be valid, unless reduced to writing within six days after the speaking of the testamentary words. When these two sections are considered together, no other construction can be given, than that the proof when the contest is had under the fifty-fifth section, shall be of the same quality and degree, (except so far as other evidence is authorized by the same section) as was proper, when the probate was had in the County Court.
This necessarily disposes of the question raised, with respect to the omission to reduce the rogatio testium to writing, as a part of the will, because it was unnecessary, under the statute, to reduce any part of the will to writing, the probate having been made in the County Court within six months after the speaking of the words; therefore it is a matter of no importance to consider, whether the rogatio testium is or is not a part of the will, and necessary to be written when the will is so required to be.
9. Should this question ever properly arise, it will be well to consider the marked distinction which exists between the 5th section of the act of 1806, and the 20th section of the English statute of frauds, which provides that no testimony shall be taken after six months, to prove any nuncupative will, except the testimony or the substance was committed to writing.
[239]*239We also remark, that, we d,o not understand it to-be, controverted, that the- proof of the factum: of a rogatio t,es,tjw]i:, is? the same as it is. to. the. testamentary, words.,
10. The, next objection, is,, that- the .will was( not made,iyegr trcmis; and it is. insisted- that the- words, last siclmpss, in. the statute, must receive this construction;.,
The case of Sykes v. Sykes, 2 Stewart, 459, has been, cited as a decision of this question by our own: Court.. We however, on looking into it, that this, question) did; nptj arise, from the facts; neither- was- it raised or necessary to bp determined. Therefore the opinion,, however much w¡e; respect th^ learned Judge who; pronounced it, can- only be-considered-, qs an obiter dictum,,, and- we are consequently constrained to, examine the point, asoné entirely.new in, this State,. If,Refere, the enactment of the- statute for the prevention of frauds, and perjuries in England* it- was necessary to the validity-of a nun,-cupative will, that it,should have-been made whilst the testator was- in extremis, then, it is clear that the saíne construction ought now to be- put oh the words, last sickness, because, that is certainly a restraining,, and not an enabling, statute., If such a construction has been given to it even in- England, perhaps it should be followed here, because the terina of our own statute are evidently borrowed from it.
But it seems to be considered by Chancellor Kent, in the, case of Prince v. Hazelton, 20 John. 511, that unwritten wills-werp, by Lthe common law, as anciently held, for he says, after quoting Perkins & Swinburnto sustain his own views of the law, vi do not infer from these passages, that unwritten, wills- were always bad at common, law, unless made ip a cas.e of extremity, when death was just overtaking the testator. In ignorant ages there was no other way of making a will, hut by words and signs; reading was. so rare an accomplishment, in the earliest; ages of the common law,, that it conferred great privileges, add the person who possessedit, was entitled under the naipe of benefit of clergy, to an exemption from civil punishment. Bpt these ancient writers mean to he understood that, ip the ages qf Henry the 8th, Elizabeth and James, letters had become sq generally cultivated, and re.ading and writing so widely diffused, that nuncupative wills were properly, according to Per[240]*240kins, and commonly, according to Swinburn, confined to extreme cases; and to be justified only upon the plea of necessity.” It seems to us, that this concession puts the question to rest, for if this once was the common law, what right have Courts to change it ? If Courts possess this power, why was there any necessity to enact the statute of frauds, when the same end might have been attained, by the Courts declaring that the old law was inexpedient, and not suited for the people in their more enlightened condition ? But, in truth, the Courts of England have never advanced this doctrine ; nor, so far as we can ascertain, has it ever there been held in any decided case. Indeed, the current of decision in the Ecclesiastical Courts, (the only Courts in which this question could therf arise) goes very far to sustain a different view ; for it is common, in those Courts, to prove instructions for a will, as a will, if they be reduced to writing in the testator’s life time, and the formal execution or completion of the will, is prevented by the act of God; and this, even in cases, when the circumstances would not bring the will within the statute of frauds, if considered as a nuncupation. [Sanford v. Vaughan, 1 Phil. 37; Green v. Skepworth, ibid 53; Devereaux v. Bullock, ibid 60.
The same rule applies to an unfinished and unexecuted paper, when the finishing and execution are prevented by unexpected death. [Scott v. Rhodes, 1 Phil. 12; Bone v. Spear, ibid 345; Wood v. Wood, ibid 357; Rockett v. Goade, 3 ibid 141; Jameson v. Cook, 1 Hagg. 82; Lumkin v. Bibb, 1 Lee, 1.
These cases do not rest on the ground, that a good nuncupa-tive will has been made, but the instructions, or the unfinished and unexecuted papers, are established as ivritten wills. They are the only cases to be found in the reports of the Ecclesiastical Courts, in which the extremity of the testator’s life, makes a difference in the decision of the judges.
The total absence of any case at Doctor’s Commons, on this precise point, is very persuasive to show, that no such rule as was decided in Prince v. Hazleton, is there recognized as law. There is, however, one case reported in which the question could, and probably would, have been made if the law, be as it was held to be by Chancellor Kent.
[241]*241In Jackson v. Bennett, 2 Phil. 90, the pretended nuncupation was made on the 29th April, and the death occurred on the 10th May. The allegation of the will was rejected, because of the omission of a sufficient rogatio testium. That point in the case, must have been subsequent to that of the last sickness, or in extremis. In the report it is stated, that the will was made at -the dwelling house of the deceased, and in his last sickness. It is also said, that the deceased summoned several of her children to her bed-side when she spoke the nuncupatory words. After making the declaration, she observed that it should be committed to writing; but after-wards said, that the witnesses hearing it, would answer the same purpose. She afterwards asked one of the persons, who were present shortly before the words were spoken, why she left the room, as she wished her to witness what she had to. say to her children.
The circumstances, certainly tend to show that the testatrix was not in extremis, in the ordinary sense of that term, and as signified by Perkins. She was sick and doubtless expected to die of that sickness, but the inference, that there was ample time and capacity to execute a written will, is well warranted from the facts which are stated. It is true that this was not a contested case, but it is scarcely possible that Sir John Nichol would have rejected the allegation for the want of a sufficient rogatio testium if the laws of England only authorized the testatrix to make a nuncupative will when in ex-tremis,- and that too, when the reverse of a case of extremity appeared from the facts alledged. It must be admitted to be a singular and most extraordinary circumstance, if it was ever law, that a verbal will might be made of personal estate, by one not in the extremity of illness, that this law should have been silently changed, and yet no trace of the change exist in the records of judicial decisions. None of the elementary writers who are quoted by Chancellor Kent, refer to a single decided case, in which the rule has been laid do wn, even if any of them go to the extent of stating it to be so. Blaokstone indeed seems, on the contrary, to admit that such wills may be made; for, after showing how far they have been restricted by the statute of frauds, he says “the thing itself has fallen into disuse, and [242]*242is hardly ever heard of but in the only instance in which favour ought to be shown to it — when the testator is surprised by sudden and violent sickness." [2 Comm. 501.] It may be, that these wills have fallen into disuse, and very properly so; but there is no. good reason when they are made, in the manner permitted by the statute,, that Courts should refuse to allow their validity.
If a person in his last sickness — that sickness of which ha subsequently dies, — impressed with the probability of approaching death, deliberately makes his will, conforming to the statute, we do not feel authorized to say that it will be invalid, because, in point of fact, he had time and opportunity to reduce it to writing.
11. In such a case, however, the evidence ought to be of such weight, as to leave no doubt on the mind of the judge or jury, that the will offered for probate, was in truth, the wjll of the deceased; and undoubtedly, whenever a will is so made, the Court must be more on its guard against importunity, more jealous of capacity, and more strict in requiring proof of spontaniety and volition, than it would be in an ordinary case. But if there is clear capacity, if there is the animus testandi, if it is made at the residence of the deceased, if the witnesses or some of them are called on by the testator, to'take notice that it is his last will, the Court must pronounce for it, if it is proved within six months, or afterwards, if reduced to writing within six days after the speaking of the testamentary words.
12. These conclusions bring us, at least, to the examination of the evidence, by which this nuncupation is sought to be proved; but, before entering on its consideration, it is proper to ascertain what number of witnesses are necessary to establish a will of this description. The statute makes three witnesses necessary when lands are devised, but it is entirely silent with respect to the number which is required to validate a nuncupative will, though, it may be inferred, from the terms t(persons present or some of them,” that more than one are necessary to all its parts, except the rogatio testium. As the statute prescribes no rule, we are necessarily thrown back on the previous law for the rules to govern our determination. The common law, properly so. called, never contained any [243]*243rules with respect to wills of personal estate- It is true, that the course of proceeding in the Ecclesiastical Courts, was en-grafted on and recognized as a part of the common law, [1 Black. Comm. 79.] but this course of proceeding was in accordance with the civil and canon laws, unless where those were changed by act of parliament, [ibid 84.] It is evident that, in this country, we must either resort to the same laws to ascertain how such wills may be made and proved, or we are thrown on the wide ocean of discretion, without compass or chart to guide us. A similar view is taken by the Court of Appeals of Virginia, in the case of Redford v. Peggy, 6 Rand. 315. That Court considered the practice and laws governing the Ecclesiastical Courts of England, as having been adopted by the colonist of Virginia on its settlement. The same doctrine obtains in Pennsylvania, Lewis v. Morris, 1 Dall. 278, and is believed to prevail in all the States, (in the absence of legislative enactments) where the common law furnishes the rules of decision.
13, By the civil and canon law, two witnesses, in general, are necessary to establish a will; and this is the rule which prevails in the Ecclesiastical Courts in England. [Twaits vs. Smith, 1 P. Wms. 13 ; Redford vs. Peggy, 6 Rand. 316.] As two witnesses are thus shown to have been necessary previous to the enactment of the statute, it follows that the same number is now requisite, whether their testimony is to be given before the probate court, or the court of chancery.
14. The first evidence, in point of order, is the record of the proceedingsjrad when the will was admitted to probate in the County Court. The 56th section of the statute, as We have seen, provides that the Court of Chancery may direct issues of fact to be tried by a jury, as in other cases; and that, in all such trials, the certificate of the oath of the witnesses at the time of the taking the original probate, shall be admitted as evidence to the jury, to have such weight as they may think it deserves. It is true, that the terms of this clause extend only to the admission of the certificate as evidence to the jury, but its spirit extends, equally, to an investigation before the Chancellor; otherwise, it might be that there would be no proof whatever in the one case, and full proof in the other.
[244]*24415. This section of the statute was, doubtless, intended to protect persons, claiming under a will, against the impossibility of establishing it, if the witnesses were to die, after the probate, but before the contest in chancery; and from the difficulty of so doing, when, after the probate, they could not be found. The intention of the section will be best carried into effect, by considering the examination of the witnesses at the time of the probate, as an examination in chief, leaving it to those who subsequently contest the will, to cross examine the witnesses, if they deem it important or necessary to do so. This construction prevents the statute from working injustice to either party in the contest. Those propounding a will ought not to be required to prove it again, and after a lapse of time, when the witnesses may be dead, or may have removed away; and, on the other hand, those contesting it, ought not to be placed in a condition where they would be called on to establish a negative; nor ought they to be embarrassed by being compelled to make the witnesses formerly sworn, their own witnesses by a subsequent examination. The witnesses are the witnesses to the will, and ought not therefore to be subject to the cross examination of those who deny its validity. Bootle vs. Blundell, 4 Vesey, 509. All of the witnesses who proved the will at the probate, have subsequently been examined by one or the other of the parties, and, therefore, it is unnecessary, at this time, to examine what was then stated by them; for it is certain the examination of both parties, will produce testimony more satisfactory than one which is ex parte.
We proceed, then, to the examination of the testimony of the witnesses, with respect to the execution of the will.
[Here the Court recapitulated the testimony given by the witnesses, for which see the statement of the case.]
16. The rules in relation to the evidence requisite to prove a nuncupative will, are .thus stated by Sir John Nickell, in the case of Lemann vs. Bonsall: 1 Addams, 389. “Nuncupative wills are not favorites with courts of probate; at the same time, if duly proved, they are equally entitled to be pronounced for, with written wills. Much more is requisite, however, to the proof of a nuncupative will than of a written one, in several particulars. In the first place, numerous restrictions are im[245]*245posed on such wills by the statute of Frauds, the provisions of which must be, it is held, strictly complied with, to entitle any nuncupative will to probate. But, added to this, and independent of ^the statute of Frauds altogether, the factum of a nun-cupative will requires to be proved by evidence more strict and stringent than that of a written one, in every single particular. This is requisite, in consideration of the facilities with which frauds, in setting up nuncupative wills, are obviously attended — facilities which absolutely require to be controverted by courts insisting on the strictest proof as to the facta of such wills. Hence the testamentary capacity of the deceased, and the animus testandi, at the time of the alleged nuncupation, must appear by the clearest and most indisputable testimony; above all, it must plainly result from the evidence, that the instrument propounded, contains the true substance and import, at least, of the alleged nuncupation; and, consequently, that it embodies the deceased’s real testamentary intentions, though not so reduced to writing, during his or her life, as to be capable of being propounded as a written will., For, unless the court is morally certain, by pronouncing for it, of carrying them, and no other, into effect, it is obviously its duty not to give any alledged will, much less a nuncupative one, the sanction of its probate.”
Judging the evidence by these rules, it may be questionable whether the testimony given by Walker and Johnston, would authorise a court to establish this will, even if their statements stood uncontradicted and alone.
The intrinsic evidence arising out of-the deposition of Walker, is very strong to induce a doubt of the execution of the will. He admits that the deceased wished to icrite his will, which the witness declined on account of not writing well; that through his negligence the writing was deferred for two or three days, after which time the deceased was advised by some of his visitors of the manner in which a verbal will could be made. When the will was made, the deceased requested the witnesses to commit it to writing. This witness was- solemnly impressed with the idea that it was intended by the deceased as his will, and yet he neglects to comply with this request, until some days after the death, when this bad scribe, [246]*246as he terms himself, did that which he refused to do for the deceased at the commencement of his sickness. Again, he says, he examined Hitchcock’s Justice, or the Laws of Alabama, with regard to the requisites of a nuncupative will, and thinks he informed the deceased of them at the time the will was made. Now, Hitchcock’s Justice does not contain a single rule with respect to a nuncupative will, and the Latos of Alabama would have informed the witness that real estate could not pass by such a will, even if it is conceded to be probable, that one, who admits his incapacity to write a will, could gather from the statute the meaning of a nuncupative will.
Then, also, the date of the will, as it appears in the writing propounded, is very unlikely to be the true date at which it was reduced to writing. The deceased died on the morning of the 6‘th day of March, on which day the will is dated. It was made, if made at all, several days before that time, and this witness says he committed it to writing some days after his death. On the examination, he states that James Lyon was present, and was likewise one of the witnesses called on ; afterwards, and when Lyon has contradicted this statement, he says, that on more permanent reflection, he is certain that himself and Johnston were called on and were present. Can we be certain, that on still more reflection, this witness may not arrive at a recollection that such a will was spoken of, but never made with the forms which the law requires ?
Some of the facts which this witness states, are not consistent with each other. If books were examined to ascertain how a nuncupative will might be made, it is unreasonable to suppose that, when examined, the witness should not have learned from them, that real estate could not be devised in this way. Again, it is not a little strange that individuals should visit the testator, and be capable of advising with the utmost precision and exactness, to the manner in which he could make a verbal will, and yet, not be capable of writing one, but the witness says, he does not know that any person competent to write a will visited the deceased in his last illness.
■Facts are also stated by this witness, which, if they ever existed, could easily have been proved in corroboration of his testimony, which it must have been evident, it was essential ■ to [247]*247support after the examination of James Lyon; and, more especially, after the record of the probate was looked into. Thus, the witness says, that the deceased was advised by two or three persons, in the presence of those who were visiting, of the manner by which a verbal will could be made. Again, when the will was made, the witnesses were informed of the purpose for which he had requested their attendance, and all other persons present, were requested to withdraw from the room.
When we look into the record of the probate, we there find a statement, evidently framed with much caution, and which is most extraordinary, when taken in connexion with the facts elicited on the examination of the witnesses. The statement in the record is, “ that it appears to the Court by evidence, that the will was reduced to writing, before the testator died, and was read over to him a short time before his death, and that he was in his proper senses, and that Robert Walker, James Lyon, and Thomas Johnson, were called on as- witnesses to testify that was his last will and testament. And it further appearing by the oath of the said witnesses, that the said will was made in the time of his last sickness, at his residence, in the county of Tuscaloosa, and intended it to be his last will.” How does it happen, that certain facts making this a written ivill of the deceased, and one too,possibly, passing his real estate, appeared by evidence, whilst certain other facts are stated, as appearing by the oath of the named witnesses, who now testify to no one .of the facts, then said to be shewn by evidence? There is also, a strong apparent connexion, between the date of the will as propounded, and the fact, alledged in the record of probate, that the will was read over to the deceased, a short time before his death. He died on the morning of the sixth of March; the will bears that date, and was, as has already been shewn, neither made, nor reduced to writing at that time.
The evidence now before the Court, shews, that when the will was made, it was known, by the principal witness, to be a nuncupative will: yet, on its face, it disposes of the real estate» and the evidence before the probate Court, was calculated and possibly intended, to make it so operate.
17. The statute makes the statement in the record evidence ; it is the certificate of the oath of the witnesses, and it is to have [248]*248such weight as it may be entitled to. It weighs most heavily against those setting up this 'will, and its effect could only have been counteracted by shewing, that no such evidence was giv-> en, and by accounting, most clearly, and satisfactorily for the, in that event, false language of the record.
18. The rule is perfectly well established that, when a will is impeached on the ground of fraud, the parties who seek to establish it, must remove or explain, and so neutralize the facts out of which the suspicion arose. (Wyatt v. Ingram, 3 Hagg. 466.) And this rule is held to apply, also, to fraudulent acts in relation to the obtaining of probate. (Ingram v. Wyatt, 1 Hagg. 389.) No attempt has been made to do away thé strong presumptions, which arise from the statements of the record of the probate, as to what was then proved when taken in con-nexion with the facts, as shewn by the witnesses ; or to support the testimony given by Walker and Johnson, against the direct and positive declaration of James Lyon.
It is impossible to believe, in the absence of evidence leading to such a conclusion, that the entry in the records of the County Court, was made by mistake, or at random, without design. Nor can the testimony given by the witnesses, be reconciled on any reasonable hypothesis.
Our duty under such a state of proof, and the presumptions which the law attaches to it, is sufficiently performed, by declaring, that the will is not sufficiently proved.
The decree of the Chancellor is accordingly reversed, and this Court, proceeding to render such decree as should have' been rendered, doth order and adjudge, that the probate of the will of John Johnson, deceased, heretofore admitted to probate in the County Court of Tuscaloosa County, be set aside and held for naught.
It is further ordered and adjudged, that the estate of the saxd John Johnson, be distributed as incase of intestacy, and that the defendants, Glasscock and Wife, be declared trustees for those entitled to distribution; and that the case be remanded to . the Chancery Court, in order that an account may be taken, and distribution made.
1. After a decree in Chancery, sustaining the probate of a nuncupative will, has been reversed by this Court, and a decree rendered, setting aside the will as not satisfactorily established, the ease will not be remanded, to let in further evidence to explain disorepanciesin the evidence.
After the opinion in this case' was delivered, the counsel for the defendants in error, petitioned the Court for a re-hearing; and, if the re-hearing was refused, for such a modification of the decree, as to permit new evidence to be taken in the Chancery Court, to explain the supposed discrepancies in the evidence.
The Court refused the re-hearing, but directed the other point to be argued at bar, on the affidavits submitted.
The affidavit of Joshua L. Martin stated, that he attended the examination of the witnesses on behalf of the defendants below. That he was then ignorant of the state of the record of the probate in the County Court, and consequently, the examination was not directed to the explanation of the apparent discrepancy of the statements of the witnesses. That he believes he never saw the record of the probate, -until the day when the hearing was had.
The affidavit of Robert Walker states, that he never gave the testimony before the County Court which is stated in the record of the probate, and he is satisfied that none such was given by Lyon or Johnson, the other witnesses; as all were present, and heard what the others swore. He also states, that he reduced the words to writing, on the evening after Johnson was buried, who died on the sixth, and was buried on the seventh of March, 1834. The day after, a copy was made by Moses. P. Walker, which the witnesses signed. He cannot remember why the written memorandum was dated the 6th of March, if it was not a mistake as to the date; for that was not the true ' time when the words were reduced to writing, which was the 7th, and signed by the witnesses on the 8th.
[249]*249It is further ordered and adjudged, that the defendant Glass-cock, pay all the costs of this Court, and the Court below, to be charged by him against, and paid out of, the funds of the estate.
\_dlfter the, foregoing opinion was pronounced, further proceedings icere had, as follows.]
James R. Lyon swears, that no such testimony was given by him, nor did he hear any such given by the other witnesses. He is confident that no such testimony was given, and is persuaded that the entry is by mistake of the clerk. Pie has an intimate knowledge of all the parties-connected with the transaction, and believes Walker and Johnson to be men of unimpeachable veracity.
Moses P. Walker swears, that he made a copy of the original draft of the will, which was drawn by his father, Robert Walker. To the best of his recollection, the copy was made on the morning of the 8th of March, which was the day after Johnson was buried; and the copy was then signed by the witnesses, who all concurred in the correctness of the will, as drawn by Robert Walker.
M. D. Williams, Judge of the County Court of Tuscaloosa County, states, that he has examined the Clerk’s minutes of the probate, and is persuaded the statement therein contained, must have arisen from the mistake, or misapprehension of the Clerk ; for he has a clear recollection of the case, and of the testimony of the witnesses, and is quite sure, that neither of them testified that the will had been reduced to writing before Johnson died. From conversations had with Robert Walker, before and at the time of the probate, he understood the will was reduced to writing after Johnson’s death;. and such, to the best of his recollection, was the testimony of the witnesses, when the will was proven. He does not remember to have seen the entry, after it was made, until lately, when it was called to his recollection; and he is fully impressed with the belief, that the Clerk made an unintentional error in the entry. He is acquainted with Robert Walker, and no man stands higher for truth and veracity. He says the same of Lyon, and that Johnston has the character of an upright man.
Moses McGuire, the Clerk of the County Court of Tuscaloosa County, states, that his attention has been called to the entry of the probate of John Johnston’s will. His first impression was, that the entry was made pursuant to the testimony given by the witnesses ; but, being informed that Walker and Lyon, both of whom he knows to be men of veracity, have made affidavit that they did not give testimony to that effect, at the probate of the will, and that the fact was otherwise, as to the reducing of the will to writing, -befgie the death of Johnston — and finding, also, on turning to the minutes of the Court, that on the same day two other nuncupative wills were admitted to probate, besides Johnston’s, one of which precedes the entry of Johnston’s, which immediately follows; and the entry of the first is in the precise language, (in the particular oí having been reduced -to writing before the death) of the entry in Johnston’s will. His attention.has also been called to the fact, that the will commences with, “ I, John Johnston,” using the first person. From these circumstances and considerations, McGuii’e says it is possible there may have been an unintentional error committed by him, in making the entry iiF-the minutes of the probate.
Phelan, for the petition,
cited More et al. v. Caldvrell, 12 Pick. 525; 9 Pick. 420; 2 B. & A. 971 ; Hood v. Pimm, 4 Sim. 101; Digest, 237 ; Story’s Eq. 336, and notes. Cox v. Allengham, Jacob, 337 ; Williams v. Goodchild, 2 Russ. 91; Gresley’s Eq. Ev. 410 ; ibid, 133.
Peck, contra,
cited Hammersley v. Lambert, 2 John. Ch. 432; Gresley’s Ev. 135; Durham v. Winans, 2 Paige, 24; Dale v. Roosevelt, 0 John. Ch. 255; Gray v. Murray, 4 Johns. 412; Rawley v. Adams, M. & K. 543; Earle v. Pickin, R. & M. 547.
GOLDTHWA1TE, J.
— We do not conceive it necessary to examine, whether this Court has the discretion, in any case after a reversal, to remand it, for the purpose of permitting the parties to go into a re-examination of witnesses. If it is admitted we can do so in some cases, we do not consider that the discre[252]*252tion would be properly exercised, under the circumstances attending this case.
The evidence, as we have shewn in the opinion heretofore pronounced, is not satisfactory to establish the will, and the question now is, could it be made satisfactory, consistently with the rules governing Chancery practice. The evidence contained in the record is not merely defective; there is no omission to prove a particular fact, or a writing, on which the case depends, as in the case of Hood v. Pimm, 4 Sim. 101. But the evidence adduced is inconsistent in its several parts; and, it is from an examination of each part, compared with all the other parts, that we have concluded that the will is not sufficiently established. In cases of this description, it is necessary that the Court should be convinced to a moral certainty, that the will propounded, is the true will of the deceased, and that every requisite of the statute has been strictly complied with. If the case was sent back and opened for the admission of new testimony, although it might be made stronger, yet the old evidence could not be expunged, and we should be called on to determine which presented the true, and which the mistaken, view of the facts.
It is sufficient to determine us to refuse the petition, that if this motion had been addressed to the Chancellor after the decree, it should not have been allowed; because, to use the words of Chancellor Kent, in the case of Gray v. Murray, 4 Johns. Ch. 412, there never was a re-examination permitted, merely to alter and correct testimony, after the cause had been heard and discussed, and decided on the very matter of fact, to which the testimony referred. It would be setting a most alarming precedent, and would shake the fundamental principles of evidence in this Court.
In the case of Maury v. Mason, 8 Porter, 211, we refused to dismiss a bill, without prejudice to another suit, when the witness, on whose testimony the case depended, was interested, and it was wished to render him competent by a release.
We are satisfied, that it would be a most dangerous innovation in the course of Chancery proceedings, to entertain and allow this petition.