
    John Hopkins against Joshua Albertson.
    
      Columbia,
    
    1803.
    Where all the •witnesses to a will, in order to pass lands are dead, or out of the state, the hand writings,' or signatures of alL the 'three witnesses to its execution should be proyed.
    TRESPASS to try title to land in Chester District. Verdict for plaintiff. Motion for new trial.
    In this case the brief stated that the plaintiff claimed under a devise from his father, John Hopkins, deceased. The will was produced, but all the subscribing witnesses were dead. The hand-writings of two of them were proved by a witness produced, but the signature of the third either was not, or could not be proved. Upon this proof, however, the presiding Judge (Brevahd) thought proper to send the cause to the jury, who found a verdict for the plaintiff.
    This was, therefore, a motion to. set aside this verdict on the ground of misdirection, and as being against law.
    
      See this ease, ante, p, 441*
   When, after hearing counsel in support of the motion, the court was of opinion that there should be a new trial. As the statute expressly requires, that there should be three witnesses to every will to pass lands j consequently, they should be produced, if alive, or within the jurisdiction of the court; if not, then their hand-writings should be proved ; for if only the hand-writings of two of them are proved, it does not come up to the meaning and intent of the statute ; for the name of the third witness, for aught that appears to the court, may have been forged ; in which case, it Would only be witnessed by two witnesses, which is not an execution of a will according to the requisitions of the statute, which requires three witnesses j though one credible witness may prove the signatures of all the three witnesses, as was determinecl in the case of Hopkins and De Graffen-reid.

Rule for new trial made absolute.

Present, Watties, Bay, Johnson, Trezevant, and , J3&EVARD.  