
    Suggett vs. Kitchell and others.
    As a general rule, a will of personal estate is required to be proved by two witnesses; though it is not always required that they should be subscribing witnesses; as, where the will is written by the testator himself, it is good if the hand writing is proved by two witnesses, or if the execution or identity of the will is proved by one, and the hand writing by another, it is sufficient.
    Where a paper was offerred for probate as the last will and testament of a man deceased, without any subscribing witnesses thereto, but it was proved by one witness that he drew the paper at the request of the deceased, that the deceased signed it by making his mark, being too weak to write his name, and that he was of sound mind and memory; and by another witness that he had heard the deceased say he intended to dispose of his property in the manner in which it was disposed of by the paper produced: Held, that this was not sufficient proof under an issue of devi-savit vel non to establish the paper as the last will and testament of the deceased, either as to realty or personalty.
    This is an appeal in error from the judgment of the Shelby circuit court, upon an issue of devisavit vel non, made up to try the validity of a paper purporting to be the last will of B. Suggett.
    The proof was by one witness, that at the request of the deceased he wrote the will and signed the name of the deceased thereto; that the deceased dictated the will and affixed his mark, and that he was of sound- mind. Another witness proved that he heard the deceased speak of his intention to dispose of his property in the same way as he had done in the paper. There was no subscribing witness to the paper. Upon this proof the circuit court charged the jury that, if they believed the proof, it was sufficient to establish the paper to be the last will and testament of B. Suggett. The jury found that it was the will of B. Suggett, the court refused a new trial and ordered that it be certified for registration. From this judgment an appeal in error is taken to this court.
    
      V. D. Barry, for the plaintiff in error.
    1st. This will proposes to pass “all the estate” of the deceased. By the word estate, all property, both real and personal, is included. It does not appear whether there is in this case both kinds of property or but one, nor is it certain of which kind. Therefore the court will require that kind of proof which will pass both kinds, lest by establishing the will on proof applicable to but one kind only, the other might pass on less testimony than the law directs.
    2d. This will is attended by none of the solemnities required by our statutes.
    1. A will of lands must be proved by two subscribing witnesses. 1784, ch. 22, sec. 11: Haywood and Cobbs, 374.
    2. A written will can only be revoked by one, proved by two subscribing witnesses. 1784, ch. 23, sec. 10: Haywood and Cobbs, 374.
    3. A noncupative will is never reduced to writing and signed by the testator, but must be, 1st. Proved by two witnesses present at the making thereof, and specially required to bear witness thereto. 2d. Made in the last sickness of the testator, at his usual residence, or where he had resided for ten days, unless surprised by sickness, &c. 1784, ch. 22, sec. 15, 16.
    4. A will in the hand writing of the deceased, subscribed by him and found among his valuable papers, must be proved by three witnesses. 1784, ch. 10, sec. 5: Haywood and Cobbs, 374.
    3d. If, therefore it be established at all, it must be done under the authority, and by the modes ¡prescribed by the common law of England.
    1. The common law requires a will of personal estate to be proved by the oaths of at least two witnesses. Rob. on Frauds, 449: Toller on Ex. 57: Swinburne on Wills, 5, 6, 45, 46, 47, 65, 343: 1 Dallas, 278, Lewis vs. Morris: 1 P. Wms. 13, Twaites vs. Smith: 7 Bac. Abr. 328.
    An exception is made to the above rule where the testator has reposed a special confidence in a particular person. Swinburne, 344. But this special confidence must be strictly proved, and when so proved, the oath of that confidential friend alone suffices to establish the will. Swinburne, 52, 344, 553. The only case .put, ¡Ilustra-ting the above exception, is, where the testator affirms that his will is written, and in the custody of a certain person. This person producing the will, deposing to its due execution, coupled with the testimony of the witnesses to whom the testator affirmed it was in his keeping, will be sufficient-proof. Swinburne, 52, 354. And this is the very case alluded to in the note to Twaites vs. Smith in P. Williams, where it is said that' if the will appeared to be subscribed by the testator, it would be good without any witnesses. See Swinburne, 346, and then refer to section 28, page 353, to which the author refers himself.
    2. If the court in the case in Peck’s Reports, 301, meant to decide that the oath of one witness, unconnected with other cotemporaneous or subsequent circumstances, was sufficient to establish a will of personalty, they are not sustained by the authorities cited in support of that position. See 7 Bac. Abr. 328.
    3. The general rule is that no written instrument shall be revoked unless by an instrument of as high a grade. Peck’s R. 301: 1 Yerg. R. 404. The act of 1784, ch. 22, sec. 14, says, that no written will canbe revoked by a subsequent noncupative will, unless reduced to writing, &c. and proved by two witnesses. This is said in the above case, (1 Yerger, 404,) to apply to a will of personalty. To say then that a will of personalty not written by the testator, can be good without a subscribing witness, when proved by but one witness, would be to require higher evidence of revocation than primary execution. This cannot be correct under a sound construction of the rule above laid down. If a revocation must be written and proved by two witnesses;, not subscribing, the converse of the rule must be true that the original ...» P must possess at least the same solemnities ox execution.
    4th. This will, therefore, not being proved either according to statute or common law, can pass neither real nor personal property.
    5th. But if I am wrong in every other point, the judgment of the court must be reversed, because it is general, establishing the will without reserve, when it should have been special, establishing it merely as a will of personalty.
    
      Robt. M’Alpin, for defendants in error.
    There is no error in the charge of the court below.
    1st. The will does not describe the kind of property of which it disposes, whether real or personal; if personal, it will pass by the will according to the intention of the testator, and it should therefore be admitted to record.
    2d. The statutes of this State in relation to the attestation and probate of wills refer exclusively to such as devise real estate, but it is not necessary in this case to determine whether this will passes real estate or not; it is sufficient that at common law personal property will pass by this will, it being proved as satisfactorily to be the act of the testator as if the witness had subscribed it as a witness. 2 Blackstone, 501, (m. page:) 1 Yerger, 404: 7 Bacon, 328, sec. 3: 2 Hen. and Mun. 467: Peck’s Rep. 301: Toller’s Executors, 2, 3.
   Green, J.

delivered the opinion of the court.

As a general rule, by the law of England, which we recognize as the law of this State, a will of personal estate is required to be proved by two witnesses. Roberts on Frauds, 449: Toller on Executors, 57: Swinburne on Wills, 6, 45, 47, 65, 343: 1 Dallas, 278: 1 Pr. Wms. 13: 7 Bacon’s Abr. 328.

It is not always required, however, that the proof shall be by subscribing witnesses. As if the will be written in the testator’s own hand, although it is not signed by him, nor attested by subscribing witnesses, it is good, provided his hand writing be sufficiently proved. 2 Blackstone’s Commentaries, 501. This proof must in general be by two witnesses. Roberts on Frauds, 450. If there be a subscribing witness who attests the fact of the identity of the will, the evidence of a single' witness as to the hand writing is said to be sufficient. Further than this, none of the authorities we have examined have gone.

If a testator say he has made his will, and it is in the possession of a particular person, proof of such declaration, coupled with the evidence of the witness in whose possession it was, will be sufficient. Swinburne, 52, 354. But this amounts to proof by two witnesses, and although such evidence is not so satisfactory as proof by two subscribing witnesses, nevertheless it furnishes a reasonable security against fraud. So if a will be wholly written by a testator, and there are corroborating circumstances, the clear testimony of one witness has prevailed. Roberts on Frauds, 450.

In the case before the court, the proof is less satisfactory than in any of the cases referred to. The will was neither written nor signed by the testator. The witness swears he made his mark, but that is not of any consequence. If the testator had written the whole will, the evidence of one unsupported witness would have made a much stronger case. A forgery of the testator’s hand throughout the body of the instrument would rarely occur. If he had signed his name to the paper, the possibility of detecting any unfairness would still have existed. But here there is nothing but the swearing of one witness, who says he wrote the will as directed by the testator, and signed the testator’s name to it. The testimony of the other witness, that the testator had said on a former occasion that he intended so to dispose of his property,, can have but little weight. It is not like the case where a testator is heard to say he had already made his will, and that it ¡was in the hands of a particular person, and that person afterwards produces the will.

We are unwilling to say this paper is the will of B. Suggett, deceased, upon the proof offered. We think it would be going farther than the authorities warrant. To do so would be most unwise. It cannot but be perceived that a door would be opened to frauds and perjuries, to an alarming extent. In this State, where our statutes dispose of the estates of intestates in a manner so consonant to the principles of justice, and to the feelings of an enlightened community, there can be no reason why the courts, by an over solicitude to establish wills, should so greatly expose the heirs and next of kin to be defrauded.

In this case one witness swears the deceased said he intended to dispose of his property as .is done by this will; the other that he was directed how to write it. In the nature of things there is no possibility of contradicting the proof, if false. It is like evidence of the confessions of a party, the most suspicious of all proof. During the prevalence of a malignant epidemic, men are taken sick at a distance from home and from their friends, and die in a few hours. How easy for such a'will, supported by such proof as this, to be produced, by which an estate is wrested from the relatives of the deceased. It is not to be expected that the temptation thus held out would be always resisted. The protection of those entitled by law to intestates’ estates, and the removal from others of such temptation to frauds as would be presented, were this will established on this proof, alike demand of the court a contrary decision. The judgment will therefore be reversed, and the cause remanded for another trial.

Judgment reversed.  