
    IN THE MATTER OF THE PROBATE OF A PARCHMENT WRITING, PURPORTING TO BE THE LAST WILL AND TESTAMENT OF PAMELA JOLLY, DECEASED.
    A writing, purporting to be executed by P. J., by a mark, which writing, with the names of all the persons whose names were subscribed as witnesses, and the name of P. J., were in the handwriting of one of the persons whose name was subscribed as a witness, not admitted to probate on proof that the signature of the person who wrote the will and signatures was her handwriting, and that she was dead.
    On the 7th July, 1843, a parchment writing, bearing date and purporting to have been executed May 20fch, 1824, purporting to be the last will and testament of Pamela Jolly, deceased, which had been exhibited for probate in the surrogate’s office of Burlington, and against the probate of which a caveat had been filed, was declared by the Orphans’ Court of that county to be sufficiently proved, and the said court accordingly decreed that letters testamentary issue thereupon, directed to the executrix therein named. Prom this decree an appeal was taken to this court.
    It appeared from the testimony, and from inspection, that the writing offered as a will, the body of it and the names purporting to be the names of witnesses to it and the name “ Pamela Jolly ” are all in one handwriting, and that not the writing of Pamela Jolly.
    
      The writing offered for probate purports to have been exeher cuted thus, “ Pamela X Jolly,” and purports to have been mark. subscribed by John Oliver, Joshua Carman, and Elizabeth Car-man, as witnesses.
    It appeared by the testimony, that John Oliver died previous to May 11th, 1824, his will having been proved on that day j that the name “ John Oliver,” subscribed as a witness to the writing offered for probate, was not his handwriting; that the name “ Joshua Carman,” subscribed as a witness to said writing, was not his handwriting ; and that the whole of the writing, signatures and all, was in the handwriting of Elizabeth Carman, including her name as a witness to the said writing. Joshua Carman died A. D. 1838, and Elizabeth Carman died a. d. 1837.
    A letter, claimed to have been written by Pamela Jolly, dated A . D. 1831, referring to a will of Pamela Jolly theretofore made, and saying that such will theretofore made was written by John Oliver, was admitted iu evidence in the Orphans’ Court; but it appeared in evidence that the writing offered for probate was not written by John Oliver. No proof was adduced to show where the writing was found.
    
      H. W. Green, for the appellant.
    
      R. D. Spencer and P. D. Vroom, for the respondent.
    They cited Phil. Evid. 473, 501; 1 Stark. Emd. 341; 5 Halst. 573; 2 South. 450; 4 Halst. 329.
   The Chancellor.

If the letter admitted in evidence by the Orphans’ Court be geuuine, it proves that Pamela Jolly had made a will before 1831, the date of the letter. But it is clear, from the testimony, that the writing now offered as a will, is not the will referred to in that letter. The letter says that the will referred to in it was written by John Oliver. The testimony shows that the writing offered as a will was not written by John Oliver. It is clear, also, from the testimony and from inspection, that the writing offered as a will, the body of it, and the names purporting to be the names of witnesses to it, are all in one handwriting; and that not the writing of Pamela Jolly. The writing, then, cannot be what it purports on, its face to be — a will signed or executed by mark, in the presence of the witnesses whose names appear to it as witnesses. If it can be held to be a will, it must be on some ground different from what the face of the writing purports.

The writing bears date May 20th, 1824. The letter referring to a will written by John Oliver, is dated in 1831. It was suggested by counsel for the probate, that the writing offered for probate was not made till after 1831, but that it might be a will notwithstanding; that, though the body of the writing and the signatures are in one handwriting, yet if there is satisfactory testimony that Pamela Jolly signed it after 1831, it would be a good will of personal property. Is there such evidence ? The will purports to be executed by a mark. A writing purporting to be executed by a mark, without any proof where it was found, or any proof of any distinctive character in the mark, and without a witness of its execution, or what is equivalent to it, cannot be received as a will.

But it is said that the body of the writing, and the signatures to it, are all in the handwriting of Elizabeth Carman ; that, therefore, the name of Elizabeth Carman, appearing as the name of a witness, is a genuine signature; and that she, being dead, proof of her handwriting proves the execution of the will. It may be that, alter 1831, Pamela Jolly may have proposed to make a new will, and she and Elizabeth Carman, or she alone, may have supposed it would be sufficient to have a copy of the old will, date, and names made, introducing any alterations she might wish, and to execute it. And if she did so execute it, and the court have the legal evidence of its execution, it would be a good will of personal property. But there is a link wanting in the testimony. JSTo proof of execution is to be derived from the name of “ Pamela Jolly in this case.

If Elizabeth Carman were in life, and had been produced as a witness, and had sworn that she saw Pamela Jolly execute the writing by making her mark, and that she subscribed her name as a witness to such execution, it would have been sufficient proof; or, if there had been added to the writing, as it now stands, a new attestation clause, showing that it was executed in the presence of Elizabeth Carman, and her name, proved to be genuine, was subscribed thereto; proof of that signature, she being dead, might have been sufficient.

But as the writing now stands, and under the facts proved, and on the very supposition that brings us to the present point of inquiry, there is nothing in the mere signature of Elizabeth Carman, as it now appears on the writing, which can amount to an affirmation or supposed affirmation by Elizabeth Carman, or to any intendment in law, that she saw Pamela Jolly execute this writing.

For aught that appears, or that can properly be inferred from the face of the paper and the proofs, Elizabeth Carman may simply have made a copy of the old will, including the signatures, (this is the supposition of the counsel for the probate,) and handed it to Pamela Jolly, and she may have put her mark to it alone in her chamber, or some one else may have put her mark to it. But if she did it herself, it must be proved she did it. We are not at liberty to carry the supposition so far as to make Elizabeth Carman’s name say what it is admitted neither of the other names subscribed as witnesses says, and what the mere appearance of her name with the other names appearing as the names of witnesses, cannot by any intendment, under the circumstances, make her say.

The proof adduced for the probate was insufficient, and the decree of the Orphans’ Court will be reversed.  