
    
      Elizabeth Wooster and others vs. Sampson Wooster.
    
    
      A paper propounded for probate as a will, appeared to have three subscribing witnesses, B., S. & W., whose names were subscribed in the order stated, and in ink of the same color. B. testified to his own, W.’s and the testator’s signatures, and that W. was dead, — S. he did not remember at all. S. had been, about the date of the paper, in the neighborhood where testator lived: he had been gone more than ten years. The witness who drew the paper testified that B., S. and W. were at testator’s when he drew it, but he did not see it executed or attested. Held that the will was not proved.
    
      Before O’Neall, J. at Beaufort, Fall Term, 1850.
    The report of his Honor, the presiding Judge, is as follows:
    ■ “ This was an appeal from the decision of the Ordinary, admitting to probate the will of John A. Wooster, deceased.
    
      “ The appellants are the widow, brothers and sisters of the deceased. The appellee, the devisee and legatee of the testator’s whole estate, arid his executor, is his brother. The paper propounded as the will, was executed 30th July, 1836 — the testator died December, 1848. He was a bachelor when the propounded paper bears date. He married many years before his death, but had no children.
    “ The paper appeared to have three subscribing ' witnesses : L. B. Bostwick, Whitty Sasser, and Hezekiah Wall. Bostwick was examined, and proved the fact of execution, and his own and Wall’s signature, who made his mark, and was dead.— Whitty Sasser,’ he said, he did not at all remember. The paper, he said, was the result of a drinking frolic, in which the testator, his executor, and the draftsman of the will, John L. Myraff, were all engaged. He said the testator was not capable of making a will.
    “It was attempted to account for Sasser: such- a man was proved to have been, about the date of the propounded will, at or in the neighborhood of Purisburgh, near which place the parties lived — that he had been gone more than ten years. No proof of his hand-writing was given. John L. Myraif, who drew the paper, said that he drew it where the testator lived, and by his directions — that he (the testator) was sober, and the paper' was drawn according to his directions, and that he was of sound mind. This witness said he remembered Bostwick, Sas-ser and Wall were at Wooster’s, when he-drew the paper; but he did not see it executed or attested. This witness is a highly intelligent and respectable man, who once drank to excess; but who now, and for many years past, has totally abstained from intoxicating drink. He, Bostwick, and the Woosters, were all in the habit of drinking to excess, when the paper was executed. He, however, stated that he was sober when the supposed will was drawn.
    
      “ The jury were told that, to establish the will, they must be satisfied by legal proof that the will was attested by three subscribing witnesses, in the presence of the testator. I thought Bostwick’s proof might be enough as to his own and Wall’s attestation ; but he did not remember Sasser at all. I did not think there was any sufficient proof that he (Sasser) in fact attested the will. There was no proof of his hand-writing — there was no proof that-he was seen to write his name to that paper.”
    The jury found against the will. The executor appealed, and now moved for a new trial.
    McCarthy, for the motion.
    It is not necessary in all cases, to prove the witness’s hand-writing. Circumstantial evidence sufficient to prove the attestation. Cited P. L. 82,491, 50,138; Rob. on Frauds, 439-40; Stra. 1096; 2 Bro. C. C. 504 ; 10 Paige C. R. 85; 6 Grat. 59.
    
      Scriven, contra,
    contended that the proof of attestation must be direct and positive, — by the witness himself, some person who saw him subscribe, or by proof of his hand-writing. Cited 2 Bay, 484.
   Curia, per

Whitner, J.

The question involved in the present motion is, whether there was sufficient proof on the trial below, that the paper propounded as the will of John A. Wooster had been attested in legal form. The report of the presiding Judge, and the written testimony read at the Circuit trial, furnish the facts to which this Court must look.

To give validity to such a paper, the statute requires an attestation by three credible witnesses. Three names are subscribed to the paper adduced, to wit — L. B. Bostwick, Whitty Sasser, and Hezekiah Walll. Bostwick alone, of these three persons, was produced and proved his own signature and that of Wall, who made his mark; as also the signature of the alleged testator. He proved, also, that Wall was dead, but he had no knowledge of the handwriting of Whitty Sasser, nor did he remember him at all; no other person present testified to the fact of Whitty Sasser’s attestation, nor was any proof offered of his handwriting. Whether this was sufficiently shewn by the circumstances, is the precise matter of present inquiry. No question of law is raised, and being one purely of evidence, passed on by the jury, shall their verdict be disturbed ? It may be assumed as true, that this witness was absent from the State, and had not been heard of for the preceding ten years, and whilst this justified proof of his attestation by secondary evidence, of what does it consist when collected together ? The usual proof, certainly in case of death' or absence, is of handwriting — authority need not be furnished to this point, and a grave question is presented, whether; in such a case as the one before the Court, evidence less direct than proof of handwriting should suffice. The A. A. 1839, (11 Stat. 41,) requires, when a will is to be proven in solemn form, that all the subscribing witnesses shall be sworn, with a proviso, that if any are absent from the State, dead or insane, “proof of the handwriting of the witness so absent, dead or insane, and of the handwriting of the testator, shall be admitted as prima facie evidence that the testator did execute the will in question, in the presence of the witnesses thereto.” Whether it was intended to set up a more stringent rule of evidence than such as was known to the Common Law, it may not be necessary, however, now to inquire. The Legislature has sought, with great care, the prevention of fraud in such instruments, as well in the particularity to be observed in their execution, and requiring the attestation by three witnesses, as also the precaution of the specific direction above referred to in ascertaining that fact. The Court, in determining the degree of evidence, should at least be careful not to defeat the end by any relaxation of rules established.

Twelve years had elapsed; a man of the name of Whitty Sasser had been in the neighbourhood, and it was thought was at the house of Wooster the day the paper was drawn — the name was written between the signatures of the other two witnesses, and in ink of the same colour — would these additional circumstances satisfy the mind in any particular case of the signature of a witness, much less in one so grave, and about which so many guards have been interposed ? It is proper, perhaps, to advert to other attendant circumstances. The alleged testator was a man of weak mind and drunken habits — lived at the time with his brother, for whose benefit the paper was intended, and in whose custody it is supposed to have been since its alleged execution. The paper was executed in a frolic, or during the time of a general drinking frolic, and in such frolics, which were frequent, the brothers and the draftsman usually participated; and though the subscribing witness produced, thought, at the time he was sober enough to know what he was about, yet he would not have signed as a witness, had he known, at the time, he would ever be called on to prove it.

This Court concurs in the opinion expressed by the presiding Judge to the Jury, that the proof was not sufficient that Whitty Sasser attested the paper in question; and the jury having so determined by their verdict, the case cannot be sent back.

The motion for new trial is refused.

O’Neall, Evans, Wardlaw, Frost and Withers, JJ. concurred.

Motion refused.  