Eccleston, J.,
delivered the opinion of this court.
In the year 1855, a paper purporting to be the last will and testament of Peter Hornaker, bearing date the 13th of April 1813, was exhibited for probate in the orphans court of Frederick county, to which the appellants filed a caveat.' The attestation clause is in the usual form, and appears to have been signed by three witnesses, in the following order:
“Lewis Motter. — Joseph Hughes. — Abraham Welty.”
The first two being dead their signatures were proved to be genuine. And in reply to a question propounded in relation to their standing as men of business and of integrity, a witness answered, u\ was personally acquainted with the said Motter and Hughes. Motter was a very competent business man, none more so in the country. Hughes was rather out of business when I knew him; his general reputation was that of an active business man, and both men of integrity.”
Abraham Welty was called and examined. He proved his own signature. Being asked whether he signed the paper at the request of Peter Hornaker, what Hornaker then said, whether at the time he (the witness) signed the will Hornaker [21]*21was present, and who else was then present, be says, “ I was in the street and Peter Hornaker requested me to come over iind put pry name to his will; he was present. Mr. Motter must have been in when I Was.” To the best of his knowledge this witness never witnessed any other paper for Ilornakcr or at his request.
On cross-examination Welty says he might have seen. Hornaker sign his name to the paper, but to the best of his recollection he did not. He has no recollection that Hornaker did sign it in his presence, or where he might have seen him.
To the best of Welty’s knowledge when he signed his name Hornaker and Motter were both present, but he says he does not know whether Motter signed his name to the paper or not. Hughes was not present. In another part of his cross-examination this witness testifies that Motter was present but he did not see him sign his name; that Hughes was not there and did not sign in his presence. He has no recollection that himself, Motter and Hughes were at any one time all present with Hornaker when he acknowledged the paper to be his last will and testament.
In response to an interrogatory on the part of the appellee, Welty answered, “I do not mean to say that Lewis Motter did not sign his name to said paper in my presence — I only mean to say that I have no recollection of seeing him sign his name to said paper. Prom the lapse of time I have no recollection on the subject.”
For the purpose of proving the signature of Peter Hornaker, Philip Hardman was examined as a witness, who said, “ 1. have seen him write, to the best of my impression it is his handwriting.” This testimony has been objected to as inadmissible to prove the signature. Whether the objection is valid or not, it is unnecessary to decide, because we think without it the other circumstances disclosed in the record are sufficient to sustain the decision of the orphans court, admitting the will to probate. The case will therefore be treated as if Hardman’s testimony was not in it.
The paper in dispute being over forty years old at the timo of the trial, is a very important fact, having considerable influ[22]*22ence upon our decision, and the views expressed in this opinion are to be considered as having particular reference to such a paper. Whether a will of recent date, if supported by such, testimony as the present, would be admitted to probate, is not now a question to be decided.
The law is based upon reason and does not exact impossibilities. Rules of evidence which apply to some transactions of recent occurrence, are very much relaxed when transactions of a like character, but of very ancient date, come under consideration. The frailty of the memory of man renders this essentially necessaiy, for without such relaxation gross injustice would frequently be the inevitable result. That the law looks with lenity upon the failure of the memory of witnesses to ancient wills, may be seen by reference to Lovelass on Wills, 418, and the authorities there cited in the notes, (25 Law Lib., 224,) 19 John. Rep., 389. 1 Wend. Rep., 414.
The witnesses, it appears, did not sign this will in the presence of each other; nor was it necessary that they should, according to the English decisions, under the statute of 29 Charles 2nd, ch. 3, sec. 5, of which our act of 1798, ch. 101, sub-ch. 1, sec. 4, is a copy.
The cases cited by the appellants’ counsel from 7 Eng. Eccle. Rep., are decisions upon the statute of 1 Vic., ch. 26, which differs materially from that of Charles 2nd. But speaking of decisions under the last named statute, on pages 416 and 417 of 7 Eccl. Rep., Sir Herbert Jenner Fust says: “It was held not necessaiy that the witnesses should see the testator actually sign; he need not acknowledge his signature to all the witnesses at the same time, the acknowledgment might be made to each witness separately; a simultaneous presence of the witnesses was not required.” He. then refers to several cases as having determined that an acknowledgment in the presence of each witness separately is sufficient. Other cases are cited by him as showing that a request to witnesses to subscribe their names as witnesses, without stating what the instrument was, was a sufficient acknowledgment under the statute of Charles. And again he says, on page 417: “Under the statute of frauds it was sufficient if the paper was acknowledged [23]*23to be a will, but it is now enacted in express terms that the signature shall be acknowledged, it would seem to require that the witnesses should see the signature; that they should know that the paper was signed at the time, a fact, which could only be known by seeing the testator sign, or by hearing him say that he had signed, and that was his signature.” The subject of a testator’s acknowledgment of the will, in the presence of the witnesses, is further treated of in the same case, on pages 419, 420.
In Hand vs. James, Comyn’s Rep., 531, the three witnesses to the will being all dead, the court held, that they having set their names to the paper it must be intended they did it regularly. And as one of them was an attorney of good character he might be presumed to understand what ought to be done, rather than the contrary.
Considering a portion of the opinion of Judge Cabell, in Dudleys vs. Dudleys, 3 Leigh’s Rep., 442, 443, so properly applicable to the case of this old will, we are induced to make a long quotation from it. He says: “Now the writing in controversy purports to be the will of Gw in Dudley, and his name is signed to it as testator; and Hendrick deposes, that this very paper was acknowledged by Dudley, and that he subscribed his name, as a witness, in his presence. It is true he does not expressly say that Dudley’s name was or was not signed to the will at the time it was acknowledged. But it is not usual for men to acknowledge papers, either as deeds or wills, and to call on others to attest them before they are signed. Such a thing may happen, and when it is proved to have happened, the acknowledgment and attestation will be disregarded. But, in the absence of all proof to the contrary, the acknowledgment and attestation give rise to an irresistible inference, that the instrument had been previously signed.
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Eccleston, J.,
delivered the opinion of this court.
In the year 1855, a paper purporting to be the last will and testament of Peter Hornaker, bearing date the 13th of April 1813, was exhibited for probate in the orphans court of Frederick county, to which the appellants filed a caveat.' The attestation clause is in the usual form, and appears to have been signed by three witnesses, in the following order:
“Lewis Motter. — Joseph Hughes. — Abraham Welty.”
The first two being dead their signatures were proved to be genuine. And in reply to a question propounded in relation to their standing as men of business and of integrity, a witness answered, u\ was personally acquainted with the said Motter and Hughes. Motter was a very competent business man, none more so in the country. Hughes was rather out of business when I knew him; his general reputation was that of an active business man, and both men of integrity.”
Abraham Welty was called and examined. He proved his own signature. Being asked whether he signed the paper at the request of Peter Hornaker, what Hornaker then said, whether at the time he (the witness) signed the will Hornaker [21]*21was present, and who else was then present, be says, “ I was in the street and Peter Hornaker requested me to come over iind put pry name to his will; he was present. Mr. Motter must have been in when I Was.” To the best of his knowledge this witness never witnessed any other paper for Ilornakcr or at his request.
On cross-examination Welty says he might have seen. Hornaker sign his name to the paper, but to the best of his recollection he did not. He has no recollection that Hornaker did sign it in his presence, or where he might have seen him.
To the best of Welty’s knowledge when he signed his name Hornaker and Motter were both present, but he says he does not know whether Motter signed his name to the paper or not. Hughes was not present. In another part of his cross-examination this witness testifies that Motter was present but he did not see him sign his name; that Hughes was not there and did not sign in his presence. He has no recollection that himself, Motter and Hughes were at any one time all present with Hornaker when he acknowledged the paper to be his last will and testament.
In response to an interrogatory on the part of the appellee, Welty answered, “I do not mean to say that Lewis Motter did not sign his name to said paper in my presence — I only mean to say that I have no recollection of seeing him sign his name to said paper. Prom the lapse of time I have no recollection on the subject.”
For the purpose of proving the signature of Peter Hornaker, Philip Hardman was examined as a witness, who said, “ 1. have seen him write, to the best of my impression it is his handwriting.” This testimony has been objected to as inadmissible to prove the signature. Whether the objection is valid or not, it is unnecessary to decide, because we think without it the other circumstances disclosed in the record are sufficient to sustain the decision of the orphans court, admitting the will to probate. The case will therefore be treated as if Hardman’s testimony was not in it.
The paper in dispute being over forty years old at the timo of the trial, is a very important fact, having considerable influ[22]*22ence upon our decision, and the views expressed in this opinion are to be considered as having particular reference to such a paper. Whether a will of recent date, if supported by such, testimony as the present, would be admitted to probate, is not now a question to be decided.
The law is based upon reason and does not exact impossibilities. Rules of evidence which apply to some transactions of recent occurrence, are very much relaxed when transactions of a like character, but of very ancient date, come under consideration. The frailty of the memory of man renders this essentially necessaiy, for without such relaxation gross injustice would frequently be the inevitable result. That the law looks with lenity upon the failure of the memory of witnesses to ancient wills, may be seen by reference to Lovelass on Wills, 418, and the authorities there cited in the notes, (25 Law Lib., 224,) 19 John. Rep., 389. 1 Wend. Rep., 414.
The witnesses, it appears, did not sign this will in the presence of each other; nor was it necessary that they should, according to the English decisions, under the statute of 29 Charles 2nd, ch. 3, sec. 5, of which our act of 1798, ch. 101, sub-ch. 1, sec. 4, is a copy.
The cases cited by the appellants’ counsel from 7 Eng. Eccle. Rep., are decisions upon the statute of 1 Vic., ch. 26, which differs materially from that of Charles 2nd. But speaking of decisions under the last named statute, on pages 416 and 417 of 7 Eccl. Rep., Sir Herbert Jenner Fust says: “It was held not necessaiy that the witnesses should see the testator actually sign; he need not acknowledge his signature to all the witnesses at the same time, the acknowledgment might be made to each witness separately; a simultaneous presence of the witnesses was not required.” He. then refers to several cases as having determined that an acknowledgment in the presence of each witness separately is sufficient. Other cases are cited by him as showing that a request to witnesses to subscribe their names as witnesses, without stating what the instrument was, was a sufficient acknowledgment under the statute of Charles. And again he says, on page 417: “Under the statute of frauds it was sufficient if the paper was acknowledged [23]*23to be a will, but it is now enacted in express terms that the signature shall be acknowledged, it would seem to require that the witnesses should see the signature; that they should know that the paper was signed at the time, a fact, which could only be known by seeing the testator sign, or by hearing him say that he had signed, and that was his signature.” The subject of a testator’s acknowledgment of the will, in the presence of the witnesses, is further treated of in the same case, on pages 419, 420.
In Hand vs. James, Comyn’s Rep., 531, the three witnesses to the will being all dead, the court held, that they having set their names to the paper it must be intended they did it regularly. And as one of them was an attorney of good character he might be presumed to understand what ought to be done, rather than the contrary.
Considering a portion of the opinion of Judge Cabell, in Dudleys vs. Dudleys, 3 Leigh’s Rep., 442, 443, so properly applicable to the case of this old will, we are induced to make a long quotation from it. He says: “Now the writing in controversy purports to be the will of Gw in Dudley, and his name is signed to it as testator; and Hendrick deposes, that this very paper was acknowledged by Dudley, and that he subscribed his name, as a witness, in his presence. It is true he does not expressly say that Dudley’s name was or was not signed to the will at the time it was acknowledged. But it is not usual for men to acknowledge papers, either as deeds or wills, and to call on others to attest them before they are signed. Such a thing may happen, and when it is proved to have happened, the acknowledgment and attestation will be disregarded. But, in the absence of all proof to the contrary, the acknowledgment and attestation give rise to an irresistible inference, that the instrument had been previously signed. A contrary course would defeat a vast number of deeds and wills; for it may often happen, and frequently does happen, that a witness not only does not remember to have seen the signature, but he does not remember the acknowledgment or the attestation, but when he sees his name subscribed by himself, as a witness, and knows that he would not have witnessed a blank [24]*24or unacknowledged paper, be feels no more doubt of the due execution of the paper than if he distinctly recollected all the circumstances. We must take it, therefore, that this will was signed when it was acknowledged before the witness Hendrick. That acknowledgment is proof, prima facie, that it was signed by the testator himself. But if the signature was, in fact, by some other person, then the acknowledgment is a ratification of the signature, and from that ratification we may fairly infer, that the signature was made in his presence and by his direction.” And in the same case, at page 449, the President Judge (Tucker) gives the like effect to the testimony of the same witness, by saying: “For Hendrick says the paper produced at the trial was that which was acknowledged, aird we must therefore presume it was signed as we see it, in the absence of proof to the contrary.”
In the case before us there is not a particle of proof which suggests the slightest suspicion of any unfairness in regard to the will. And the sanity of the testator is admitted.
We have seen that the two witnesses who signed first are both dead, and their signatures are proved to be genuine. They were men of integrity, having business habits, and the first of the two veiy remarkable as a man of business. In the absence of proof to the contrary, these circumstances, in such a case as this, justify the legal presumption that the requisites of the law have been complied with, so far as relates to the execution of the will in the presence of those witnesses, when that presumption is supported by the testimony of the surviving witness. And here we think it is. This witness 'being in the street was requested by the testator to come over and put his name to his will. The name of the witness was put to a paper in the presence of the testator, and Motter, a veiy intelligent man of business, whose name (proved to. be genuine) appears first upon the instrument as a witness; Welty, the surviving witness, never having signed any other paper for the testator or at his request. The paper in dispute has upon it the genuine signature of Welty as a witness, his name being last in the order of signing. From such facts how can we come to any other conclusion than that the will which the [25]*25testator requested the witness to put his name to is the paper in controversy? And if it is there was an acknowledgment of this paper as his will by the testator to the witness; which acknowledgment having been made, when, from the face of the paper itself, in connection with the testimony of Welty, it appears the two first named witnesses had previously attested it, they being men of integrity and of business habits, the legitimate inference is, that the name of the testator appearing thereon is his handwriting, or was placed there by his authority and in his presence, and was there when the paper was attested by the first -witnesses. We therefore think the orphans court were right in admitting this will to probate.
The cases of Jackson vs. Le Grange, 19 Johns., 386, and Jackson vs. Vickory, 1 Wend., 406, were both actions of ejectment, and differ materially from this. In the first, but one witness was examined who did not prove the perfect execution of the will; one of the witnesses was dead, but the third was living, and within the jurisdiction of the court. Id the other case 1,he only witness called to testify failed to prove that the requirements of the law had been complied with, and the other two witnesses were alive and within die court’s jurisdiction.
Order affirmed*