Lordship, I think a parol disposition before three, full as solemn an act as a will in writing, attested by three separatim." He admitted, however, that the decisions were the other way, and that the point was established.

PART XVI.

Evidence of the Attestation.

IT has been already made to appear, that a will of lands may be sufficiently established in a court of justice, as to the testator's signature, by proof of his

mentum; sed licet alio tempore dictatum, scriptumve proferatur testamentum, sufficiet uno [tempore] eodemque die, nullo actu [extraneo] interveniente, testes omnes, videlicet simul, nec diversis [temporibus] scribere, signareque testamentum. Finem autem testamenti subscriptiones, et signacula testium esse decernimus. This exactness with respect to the simultaneous performance of the act of publication was retained out of the civil law, or jus civilis, when the civil and prætorian law were reduced into agreement, as I have before shewn: for the form and validity of a will, as ultimately established, was a tripartite constitution. The necessity of witnesses, and their presence at one and the same time, was founded on the jus civilis-the subscriptions by the testator and the witnesses on the imperial constitutionsthe sealing and the number of the witness, was settled by the edict of the Prætor.

acknowledgment thereof. It will be proper now to consider, what is sufficient proof of the due attestation of such a will, according to the directions of the statute. We have seen that in a case of authority, upon a question before the court, whether or not it should be left to a jury, to determine as to the fact of a due attestation in the presence of the testator, where all the witnesses were dead; it was clearly held, that such question was proper for the decision of a jury, who might found their verdict upon mere circumstances and probabilities.

of common

law, one of

In the courts of common law, where a will of lands In the courts is produced, it is usual to call but one witness to prove it; but that is said only to be the case where witnesses may

the fubfcribing

prove the attes

tation by the

others.

And if all the witnesses deny

no objection is made on the part of the heir, who is entitled to have all the witnesses examined, yet in such case the heir himself must produce the other witnesses, for the devisee need produce only one, if that one can prove all that is requisite to establish the validity of the will. So that if the two other witnesses be called by the heir, and even refuse to their hands, still verify their attestation, still the proof of their hand- go into circumwriting will be enough, if one of the three can prove the due executhe other circumstances of the execution. And, indeed, it has been held, that if they all swear that the will was not duly executed, the devisee may yet go into circumstances to prove the due execution. This

• Gilb. Eject. Sect. 8. Holt Rep. 742. Dayrell v. Glascock. Bull, N. P. 264. 1 Esp. N. P. Rep. 391.

the devisee may

stances to prove

tion of the will.

Whether the

evidence of the

nesses can be

their own attestation.

was so ruled, as it appears in Lord Chief Justice Pratt's time, in a case of Pike v. Badmering, on a trial at bar, where the three subscribing witnesses to a will were called and denied their hands. The court permitted the plaintiff to contradict that evidence; and he supported the will against such testimony.

It appears, and with the greatest reason, that the subscribing wit- evidence of subscribing witnesses against their own received against attestation has always been received, if received, with the utmost reluctance; and the courts have, on the other hand, been very ready to admit countertestimony to establish the will against such suspicious and discordant depositions. In Lowe v. Jolliffe," which was tried at bar, upon an issue of devisavit vel non out of Chancery, the three subscribing witnesses to the testator's will, and the two surviving witnesses to the codicil, and a dozen servants of the testator; all swore him to be utterly incapable of making á will, or of transacting any other business, at the time of making his supposed will and codicil, or at any intermediate time. But this evidence was opposed by the depositions of several of the nobility and principal gentry of the county where the testator resided, who had frequently and familiarly conversed with him, during the whole period, and some on the very day on which the will was made; and also of two eminent physicians who attended him, and who

all swore to his entire sanity and more than ordinary intellectual vigour (1).

The counsel for the plaintiff also examined to the like purpose the attorney, a person of unblemished reputation, who drew the will; and read the deposition of the attorney, by whom the codicil was drawn and witnessed, (he being dead, and his testimony perpetuated in chancery), who spoke very circumstantially to the very sound understanding of the testator, and his prudent and cautious conduct in dictating the contents of his codicil. Upon the whole, it appeared to be a very black conspiracy, to set aside the will, without any foundation whatsoever; the defendant's witnesses being so materially contradicted, and some of them so contradicting themselves, that the jury, after a trial of fifteen hours, brought in a verdict for the plaintiff, to establish the validity of the will and codicil, after an absence of five minutes. Lord Mansfield then declared himself fully persuaded, that all the defendant's witnesses, except one, being nineteen in number, were grossly and wilfully perjured; and called for the subscribing witnesses, in order to commit them in court, but they had withdrawn themselves. A prosecution of some of them for perjury was strongly recommended by the court; and the

(1) See some observations of Sir William Grant, the present Master of the Rolls, in Burrows v. Locke. 10 Vez. Junr. 474.

three testamentary witnesses were afterwards convicted, and sentenced, each of them, to be imprisoned for six months, to stand twice in the pillory, with a paper on their heads, denoting their crime, once at Westminster Hall Gate, and once at Charing Cross, and to be transported for seven years.

It is observable that, however the testimony of these subscribing witnesses against their own attestation was ultimately discredited, no doubt was entertained of their competency; as was remarked by the late Lord Chief Justice Kenyon, in commenting upon this case, in Bent v. Baker (2) who entirely approved of Mr. Justice Buller's distinction in this respect between negotiable and other instruments. So that the observation of Mr. Justice Yates, in the case of Alexander v. Clayton, viz. that "the witnesses ought not to have been admitted to give evidence against their own attestation," seems to have been too strong for the present doctrine, or perhaps incorrectly stated by the reporter.

It is one thing to offer testimony to destroy the validity of an instrument attested by one's own signature and subscription, and another to deny the fact of one's own attestation. Lowe v. Jolliffe, as above

d 4 Burr. 2224.

(2) 3 T. R. 34. and see the reasons for this distinction in Mr. J. Buller's opinion, pronounced by him in the same case.