the approbation of the testator, it will be effectual to pass the personal estate".

The proof of the will may be in two forms, of which one is called the vulgar or common, the other is termed the solemn form or form of law. If the will be not contested, the executor or administrator durante minore etate, or durante absentia, or cum testamento annexo, may prove it by his own oath, or as it is said; in some dioceses in York, with the additional eath of one witness, before the ordinary or his surrogate, But if the validity of the will be disputed, it then becomes necessary to prove and establish the will in the solemn way, or, as Swinburn expresses it, in form of law; that is, per testes, in the presence of such persons as would be interested if the deceased had died intestate. Two witnesses must then be sworn and examined upon interrogatories administered by the adverse party. Between which two forms of proving a will, there is a substantial difference of effect, for after an informal proof the executor may be compelled again to prove the will in due form of law, which may be inconvenient if the witnesses are dead in the mean time. The executor may, therefore, if he please, for greater safety, if he himself have an interest in the will, elect to have the will proved in the more solemn form, and in such case he must cite the persons who would

• Limbery v. Mason and Hide, Comyns, 452. Gilb. Rep. 260. • Burn. Eccl. L. 208.

of proving a will,

in the common

and solemn form,

be interested under an intestacy, to be present at the probation thereof. If the will is only proved in the common form, it may at any time within 30 years be disputed', but if the solemn form be pursued, and no adverse proceedings are instituted within the time limited for appeals, the will is liable to no future controversy.

When a will is proved by the probation of the more formal or solemn kind above alluded to, the civil law rule of establishing all proof upon the testimony of two witnesses, is followed in our Ecclesiastical Courts. And such witnesses must be able, at least, to depose, that the testator declared the writing produced to be his last will and testament, unless where the will or codicil was written by the testator himself; in which case, as has been above observed, the validity thereof may be established upon proof of the hand-writing only, but it ought to be by the evidence of such as have seen him write"; and though this evidence ought, in general, to be given in the Ecclesias- by two witnesses, yet, if there be one subscribing witness, who appears to attest the fact of the identity of the will, the testimony of a single witness is said to be sufficient. And where the will has been wholly written by the testator, and there are corroborating circumstances, the clear testimony of one witness has prevailed in the spiritual court. The general neces

Of the general

necessity for two witnesses to establish a fact

tical Courts.

Godolph. Ó. L. 62.

8 4 Burn. Eccl. L. 207. * See the case of Eagleton v. Kin_ston, 8 Vez. jun. 438.

sity for the evidence of two witnesses is borrowed from the Roman law; the máxim of which is, that one witness alone cannot be heard, or, in other words, is no witness at all'. "Unius responsio testis omnino non audiatur (1).”

We have seen, that notwithstanding the rule of the Roman law, that nemo testis esse debet in propria causa, legataries were permitted to give evidence in support of a will, upon the distinction between particular and universal successors; but by the practice of the Ecclesiastical Courts of this kingdom, no legatee can be received to give his testimony to establish a will of personal estate, until his interest has been removed by his receipt of the value of his legacy, or he has renounced it and discharged the

executor.

But as to the form of the instrument itself, the of the form of Ecclesiastical Courts are not scrupulous. A memor

See the case of Thwaites v. Smith, 1 P. Wms. 13.

the testament.

(1) Cod. 4. 20. 9. Where the Ecclesiastical Court proceeds in a matter merely spiritual, or confined to their own jurisdiction, no prohibition lies, if their proceedings are contrary to common law; as if they refuse the testimony of one witness. But if they disallow the proof of a temporal matter, by one witness, though such temporal matter be incident to a matter within their jurisdiction, a prohibition lies from the temporal courts. 1 Show. 158, 172. Shatter v. Friend, and see H. H. C. L. 5th edit. and the note (q) by the Editor.

k

andum or scrap of paper, written by a person in contemplation of death, and with a design to make it operative after that event, may be proved in that court as testamentary, and, if so received, it seems Determinations a court of equity will support it. A string of extical Courts on amples might be cited to illustrate this observation;

of the Ecclesias

this subject.

many were produced in the case of Limbery and Mason v. Hyde'; among which, that of Loveday v. Claridge is strong to the purpose.

The testator intending to make his will, pulled a paper out of his pocket, and wrote down some things with ink, some with a pencil, and though it had no conclusion, but appeared to be a draft which he intended afterwards to finish, (for it was not signed, but had at the end a calculation of his effects, an account of his tea-table, and an order to pay a dividend of stocks;) yet it was held to be a will.

Thus too, in a case where a woman possessed of considerable real and personal property, wrote a letter to an attorney, her friend, giving him an account how she would dispose of the same, and in her ignorant way, added, “please not to put this rigmaroll in till I find it correct-this only by way of memorandum in case I should go off suddenly.” And the testatrix survived the writing of that letter three or four months, but took no further steps

* Vid. Cox v. Basset, 3 Vez. jun. 158.

1 Com. 452. and see Downing v. Townsend, Ambler 280. 592

therein, Sir George Hay was of opinion, that, under the circumstances, such letter could not operate as the will of the deceased; but on an appeal, the Court of Delegates reversed his sentence.

In Cobbold v. Bowes, a gentleman gave instructions to his attorney to prepare his will for the disposition of his real and personal estate. The will was accordingly prepared; settled by the testator and engrossed for execution with the usual clauses of attestation. This will was of considerable length, and at the left-hand corner of each sheet of paper was the word 'witnesses.' Upon the death of the deceased, the will was found with his name subscribed to each sheet, and, opposite to the seal, on ́the last sheet, but not witnessed. Dr. Calvert, the then judge of the Prerogative Court, was of opinion, that the deceased, by permitting the clause of attestation to remain, had bound himself down to a formal execution, and therefore pronounced against the will; but on appeal, the Court of Delegates reversed such sentence, and thereby rendered the will valid as to personal property (2).

To the same effect was that of Wright v. Walthoe, cited in Limbery v. Mason", where there were three

■ Com. 452.

(2) See these cases more at large in a note by the Reporter to the case of Matthews v. Warner, 4 Vez. jun. 200.