
    *Clarke and Others v. Dunnavant.
    January, 1839,
    Richmond.
    Will — Statutory Requisitions — Court of Probate.— Though the attesting witnesses to a will have forgotten whether material requisitions of the statute were observed, in the execution and attestation, or not, compliance with those requisitions may nevertheless be properly inferrible by the court of probate, from the circumstances of the case.
    Same — Proof by Attesting Witnesses — Case at Bar. — A will more than eight years old, attested by three ■witnesses, being offered for prolate, one of the witnesses proves, that bei n.p 'casually present at the testator’s house on a particular occasion, which he minutely describes, the will was produced, read to the testator (who, it appeared, could neither read nor write), signed for him by the witness, and acknowledged by him as his will In the witness's presence, who thereupon subscribed as attesting witness in the presence of the testator. The other witnesses prove merely their own signatures, and that they would not have subscribed unless they had been requested by the testator and had thought that all things were regular: having forgotten all the circumstances of their attestation, except that they were present at the testator’s house on the occasion described by the first witness: and one of them states, that if re-q uested by the testator to attest his will, he would have done so, whether the testator were present or not at the time he subscribed his name ; while the other admits, that he does not know in what manner the law requires a will to be witnessed. Hkld, the proof of due execution of the will is sufficient to admit it to the record.
    In the county court of Nottoway, at April term 1837, a writing' purporting to be the last will and testament of William Dunna-vant then lately deceased, was produced by Pemberton Dunnavant one of the executors therein named, and offered for probate. It was in the following terms :
    “ In the name of God, amen. I, William Dunnavant of Nottoway and state af Virginia, being in perfect health of body and of perfect mind and memory (thanks be given to God !) calling unto mind the morality of my body, and knowing that it is appointed for all men once to die, do make and ordain this my last will and testament. 'x'Eirst, my just debts to be paid ; and then I lend unto my beloved wife Sarah the following property during her life, that is, the whole of my estate to be kept together until the death of my wife ; then, ather death, I will John M. Butcher one dollar, Pleasant Clarke one dollar, John W. Dunnavant one dollar, Mary Crowder one dollar, William G. Butcher one dollar, Elizabeth Butcher one dollar, John Butcher junior one dollar, Susanna Butcher one dollar, Sarah Butcher one dollar, Edgar Dunnavant one hundred dollars and be educated, and Pemberton Dunna-vant to receive the balance of my estate, to wit. my tract of land, Beck, Daniel, Eliza, Joe, Billy, Nancy, Moses, James, and all their increase, and stock of all kinds, household and kitchen furniture, plantation utensils. I appoint Shadrack R. Sudbury and Pemberton Dunnavant executors to my estate. In witness whereof I have hereunto put my hand arid seal this fifteenth day of December one thousand eight hundred and twenty eight,
    his
    William X Dunnavant, [Seal.] mark
    Signed, sealed and delivered in the presence of P. O. Eipscomb, Allen Robertson,
    John Roberts.”
    The motion for probate was opposed by Pleasant Clarke and Susanna his wife and William G. Butcher. The court, after hearing testimony in support and defence of the motion, was of opinion that the will was proved according to law by the oaths of the subscribing witnesses, and ordered that the same be recorded. Clarke and wife and Butcher appealed to the circuit court. The evidence before that court, as spread upon the record thereof, was the following :
    1. It was admitted by the parties that on the 15th of December 1828, the testator’s wife was living ; that *Pemberton Dunnavant was his only surviving son ; that John W. Dunnavant, another son, died in the year 1821, leaving only one child, named Edgar ; that Susan, a daughter of the testator, was at that time married to Pleasant Clarke named in the will, and was still living ; and that another daughter of the testator, Sally the wife of John M. Butcher, was dead in December 1828, having left six children, who are named in the will.
    2. P. O. Eipscomb deposed that the first signature as attesting witness to the will in contest is his, in his own handwriting, and that he recollects to have heard the will read to the testator, and thinks he would not otherwise have subscribed it. The testator remarked, that he was not ashamed or afraid for any body to hear his will read. The contents of the paper offered for proof correspond, so far as relates to the Butchers, with the paper he heard read. He signed his name as witness at the time he heard the will read, but cannot tell, within two or three years, when that was. He recollects that the place at which he subscribed his name was at the west end of the house, and that he wrote upon his knee, and within a few paces of the testator, as he thinks. The will was read to the testator in the presence of the witness, and at the same interview ; he thinks it was read by Shadrack R. Sudimry. He is positive that the testator acknowledged the will in his presence, from the fact of his - having signed it, as he would not otherwise have done so; he would not, though requested, have witnessed such a paper, unless the person executing the same were present and acknowledged it, and all things were regular. Witness is inclined to think, but is not positive, that he himself wrote the signature of the testator’s name, and the words “fifteenth” in the body of the will. He does not distinctly recollect any of the provisions of the will he heard read, except those relating to the Butchers, although there were other provisions in it ; he did not read the will himself; nor does *he recollect the position in which he stood when it was read, or whether he was looking over it to see that it was correctly read, or was so placed as to be able to detect any misreading'. He is unable to say whether the testator could read or write ; he did not see him read the will; nor does he recollect hearing him acknowledge the writing to be his will, though he has no doubt that he did so, from the fact that the witness subscribed the same. He never heard any paper read, purporting to be the will of the testator, on any other occasion ; and there is no such paper, except the will now in contest, which has his signature as a witness. The reading of the will was after the testator’s declaration that he was not ashamed or afraid for any one to hear his will read. It was read in a tone of voice sufficiently loud to be heard,'at the distance the testator was from the reader, by any one whose hearing was not seriously impaired. Witness was well acquainted with John W. Dunnavant, the deceased son of the testator. He does not recollect whether his name was mentioned in the will which he heard read. Witness was casually present when the will was read and sig'ned, in consequence of his wagon being engaged in removing the property of Sudbury up the country, to Buckingham. He does not know why the will was executed and witnessed outside of the house, unless it was because they were there weighing fodder for the wagon. He recollects that other persons were present on the occasion, but does not recollect whether either of the other subscribing witnesses was of the number or not. He does not recollect who produced the will, nor who took possession of it after it was executed. The testator, at the time, was of sound and disposing mind and memory, and never was otherwise, so far as the witness knew.
    3. Allen Robertson deposed, that the signature of his name to the will in contest is his own ; that he has no recollection of having subscribed the same, but thinks *he should never have subscribed it, unless he had been requested by the testator to do so, and other things in relation thereto had been regular. If the testator had acknowledged a paper or will, and requested him to witness it, he would have done so, whether the testator were present or not at the time of his signing as a witness. He lived some six or seven miles from the testator, and knew him well, but does not know, and never heard, that he was deaf. He recollects Sudbury’s removal, and that he himself was present at the testator’s house when fodder was weighed for the wagon which was to carry Sudbury’s property. The testator was fully competent to make a will on that day, and witness never knew him to be otherwise, at any time.
    4. John Roberts deposed, that the signature of his name to the will in contest is his own ; and that he was at the testator’s house on the day on which P. O. Hipscomb and Allen Robertson were there, and on which Sudbury removed from the county. He has no recollection of having been called on by-the testator or any other person to witness the will, but he would not have done so unless he had been requested by the testator, and had thought that all things were regular. He does not know in what manner the law requires a will to be witnessed. He does not recollect when he subscribed his name as witness, nor who was then present, nor whether the testator was present or not, nor whether it was done in the house or out of it: nor does he recollect that he ever heard the will read, or heard any of its contents. The testator, at the time, was capable of making a will, and the witness never knew him to be otherwise.
    5.Rive other witnesses were sworn and examined. Three of them testified that they knew the testator well, and had often conversed with him, and had never perceived that he was deaf; though one of these witnesses added, that he was in the habit of speaking loud. One of the*remaining two witnesses stated, that in the years of 1827, 1828,' and 1829, in order to make himself understood by the testator, he was obliged to speak to him in a louder voice than usual: the other stated, that the testator was thick of hearing, but witness does not know that he was so in 1828.
    It further appeared that John W. Dunna-vant resided during his life with his father the testator, and died at his father’s house, in 1821: that in the year 1828, the testator owned a slave named Mary and another named Sam, children of the woman Eliza mentioned in the will: and that the testator, at the time of his death, was 78 years old.
    The circuit court affirmed the sentence of the county court; and on the petition of Clarke and wife and Butcher, this court allowed them an appeal from the judgment of affirmance.
    Macfarland and Rhodes, for the appellants,
    said, here was the will of a very aged man, who could neither read nor write, and was probably deaf ; an inofficious will, disinheriting natural objects of the testator’s bounty, in favour of his surviving son ; a very oblivious will, bequeathing one dollar to a son who died seven years before, and forgetting two slaves, though it purports to enumerate the slaves belonging to the testator. Under such circumstances, clear proof of the execution of the will ought to be required. The will was written by one Sudbury, who left the county on the day of writing it, and has not been examined in the court of probate as a witness ; it does not appear in whose custody the will was left ; and there is no proof that it accords with the previous intentions of the testator, or that it was ever subsequently approved, or even mentioned by him. The case then rests wholly on the proof of execution. Eipscomb, the first subscribing witness, proves his own handwriting, and that he heard the will read to the ^testator by Sudbury, but he does not remember the time, within two or three years; he thinks he wrote the testator’s name, yet he did not know that the testator could not write, and he proves no direction or request of the testator that he should sign for him ; he does not remember who were present, or that either of the other subscribing witnesses was there; he remembers only those provisions of the will which relate to the Butcher family, the least important provisions of all, and forgets the remarkable circumstance that a legacy was bequeathed to a son who died seven years before the execution of the will. The two other witnesses prove their own signatures, and nothing more : neither of them proves the attestation of the will by the others : and one of them states, that if requested by the testator to attest his will, he would have done so, whether the testator had been present or not when he subscribed his name as witness ; while the other admits his ignorance of the mode in which the law requires a will to be witnessed. The general rule is, that every fact requisite to the valid execution of a will under our statute, must be proved by two witnesses. Burwell & others v. Corbin & others, 1 Rand. 131. There is no such proof here. Moreover, the proof of every such fact must be express and positive. There is no case establishing that compliance with statutory requisites to due execution may be inferred by the court, where the attesting witnesses, when examined, fail to afford direct testimony that they were complied with. The cases of Hand v. James, Com. Rep. 531 ; Croft v. Pawlett, 2 Stra. 1109, and L,d. Ran-cliffe v. Parkins, 6 Dow’s P. C. 202, were cases of old wills, where, the attesting witnesses being dead, proof of their handwriting was not merely the best, but the only evidence of due execution that the nature of the case admitted. Here the will was but little more than eight years old, and the attesting witnesses were all examined. Even if inference were admissible in *the present case, it ought rather to operate against the will, than in its favor : for those facts necessary to due execution which have been forgotten by the witnesses (if indeed they existed at all), were as well calculated to impress themselves on the memory, as any that have been recollected and proved ; so that the just inference would seem to be that they never had existence, and not that they existed but have been forgotten.
    Johnson and Stanard, for the appellee,
    said, the evidence shewed that the whole transaction relating to the execution of the will took place at one and the same time, and in the presence of the testator. The will had been previously drawn by Sudbury, who was removing ; the parties were assembled on that occasion ; the will was then produced, read to the testator, and signed by him, in the presence of the first witness, with his mark (Harrison v. Harrison, 8 Ves. 186 ; Addy v. Grix, Id. 504,) or at all events signed with his name, in his presence, by the first witness, and then acknowledged by him as his will, in the presence of that witness ; who thereupon subscribed his own name as attesting witness, in the presence of the testator. So far as respects the testimony of that witness, the proof of due execution is plenary. The second witness proves that he attested on the very occasion mentioned by the first, namely, when Sudbury was removing, and they were engaged in weighing fodder for the wagon. And the third witness refers to and identifies the occasion spoken of by the other two, as that on which he attested the will. Both the second and third witnesses declare that they would not have subscribed, unless they had been requested by the testator to do so, and had thought that all things were regular. The inference arises irresistibly, that all the witnesses were present during the whole transaction ; that all of them heard the will read to the testator, saw it signed, heard him acknowledge it, as testified by the first witness, and subscribed their *names in his presence. It is objected, however, not that noncompliance with the statute is positively proved, but that the evidence does not expressly prove compliance ; and it is said, there is no case of a will admitted to probate, where the witnesses, when examined, failed to prove expressly the facts requisite to due execution. There are certainly many cases in which direct proof has been dispensed with. Some of them are admitted on the other side— those, namely, where the attesting witnesses have all died, and the several facts constituting due execution are inferred from the mere proof of their handwriting. So, when the witnesses have become insane, and the failure of memory is total, instead of being partial, as it is here, proof of handwriting is sufficient to admit the will to probate : as it is, likewise, when the witnesses cannot be had to give their testimony in court. And even in a case where the subscribing witnesses deny their attestation, or impeach the competency of the testator, the will may be established by falsifying their testimony. So, a will has been held good, although the subscribing witnesses did not know and could not prove that there was any signature to it when they attested : the jury was left to infer the fact of signature, from the evidence. See the cases cited in 2 Stark, on Evid. (new edi.) 922; Lowe v. Jolliffe, 1 W. Blacks. 365. In our own courts too, the requisites of the statute have been held infer-rible from evidence not positive to the facts. Smith v.. Jones, 6 Rand. 33; Dudley v. Dudley, 3 Leigh 436. If, then, where the witnesses are dead, insane, or absent, proof of their handwriting is clearly sufficient to admit the will to probate, the question here is, whether, upon the same proof by the witnesses themselves on their examination, the will is to be deemed sufficiently proved for record ? Suppose all the attesting witnesses to a will are brought into court and examined, but they declare that they have forgotten every circumstance of the execution *and attestation ; they prove nothing but their own handwriting : in such case the court is clearly bound to infer either that the will was duly executed, or that it was not; and it will make the necessary inference, one way or the other, according to the circumstances of the whole case. Here, all the witnesses recollect the occasion, and the same occasion, of attesting the will; but two of them have forgotten all the concomitant circumstances. It is a mere case of partial failure of memory ; and there is no case in which the forgetfulness of attesting the witnesses has been held a sufficient ground for rejecting the will. White v. Trustees of the British Museum, 19 Eng. C. R. Rep. 91; Wright v. Wright, 20 Id. 197; Hudson’s case, Skinner 79 ; Bagwell v. Glas-cock, Id. 413; Jackson d. Regrange v. Re-grange, 19 Johns. Rep. 386.
    
      
       Wills — Number of Witnesses to Prove. — The principal case is cited in Cheatham v. Hatcher, 30 Gratt. 58, 60.
      Same — Signing—Acknowledgment of Signature.— The principal case is cited in Sturdivant v. Birchett, 10 Gratt. 103.
      Same — Subscribing Witnesses Need Not See Signature of Testator at Time of Acknowledgment. — In Nock v. Nock, 10 Gratt. 115, the court said: “It was certainly never intended, by the framers of our new statute, to require the subscribing witnesses to prove that they saw the signature of the testator at the time of the acknowledgment of the will. That would be to make the validity of wills 'depend upon the memory and good faith of a witness, and not upon reasonable proof that all the requirements of the statute had in fact been compiled with. Jesse v. Parker, 6 Gratt. 64; Clarke v. Dunnavant, 10 Leigh 13.”
      Same— Attestation —Presence of Testator. — The principal case Is oiled in foot-note to Sturdivant v. Birckett, 10 Gratt. 67.
      Court of Probat Province of. — A court of probat occupies tile place of a j ury as to questions of fact, and its province is, like that of a jury, to draw all just inferenees from the evidence. Nock v. Nock, 10 Gratt. 112, citing Smith v. Jones, 6 Rand. 33 ; Boyd v. Cook, 3 Leigh 32 ; Dudleys v. Dudleys, 3 Leigh 436 ; Clarke v. Dunnavant, 10 Leigh 13. See the principal case cited in Webb v. Dye, 18 W. Va. 386.
    
   PARKRR, J.

I am of opinion that the will of William Dunnavant deceased was well proved, there being no evidence of fraud or unfairness in the transaction.

It is a will attested in 1828, and offered for probate in 1837. After such a lapse of time, the forgetfulness of the witnesses as to some of the circumstances attending its execution, affords no fair presumption that they did not exist. Pew persons witnessing a paper would, after eight or nine years, be able to recall every fact that might be necessary to give it legal validity ; and if their defect of memory is, without other impeachment, to prejudice the rights of parties claiming under it, the mischief would be greater than any that can result from this decision. The law regulating devises requires reasonable proof that every statutory provision has been complied with, but it does not prescribe the mode of proof, nor that the will shall be proved, as well as attested, by two or more credible witnesses ; nor that frail memory shall change its nature, and perform impossibilities. A will over thirty years old it is said to *prove itself, although the testator may have died recently, because of the unreasonableness of requiring strict proof of so old a transaction. (Said by counsel, arguendo, in Calthorpe v. Gough, 4 T. R. 707, 709, n, to have been decided by lord Kenyon in Mackay v. Newbolt. And see Ed. Rancliffe v. Lady Parkins, 6 Dow’s P. C. 202.) What then if it be 29 years old, or has been attested so long before as to afford a fair presumption, derived from our experience, that many things actually existing may have faded from the memory of the witnesses ? Will a jury, or a court of probate, which acts upon the same principles of evidence as a jury, reject the will because those circumstances are not all recollected ? If the witnesses are dead, we infer all the necessary requisites from proof of their handwriting, although the memorandum of attestation is silent as to material ones. Hand v. James, Com. Rep. 531 ; Croft v. Pawlett, 2 Stra. 1109; Brice v. Smith, Willes’s Rep. 1. We also infer the signing of the devisor, from the fact of his acknowledging the instrument to be his will, (Ellis v. Smith, 1 Ves. jun. 11,) and the signature of the witnesses in his presence, from the fact that they were all in one room. Why then may we not presume the same thing, from the proof of any other facts or circumstances by which those to be inferred are usually -accompanied? This is a familiar rule of evidence, illustrated by all the writers on the subject, and applicable to every case where the law has not positively prescribed the degree of proof. Why, in this case, should we make an exception ? Why exclude circumstantial evidence, or deduction of fact from fact, and confine ourselves to positive proof, so difficult to be obtained,and more difficult from conscientious than from unscrupulous witnesses ? It is admitted there is no authority for this innovation, and I think it rests on no sound principle. The question is not what facts are to be proved (for about that we all agree), but through what *media those facts may be impressed upon the minds of those appointed to try and determine them.

In the case at bar, the will is signed by the testator (for his mark is a signing within the statute; Harrison v. Harrison, 8 Ves. 186; Addy v. Grix, 8 Ves. 504,) and there are three subscribing witnesses to it, whose names are in juxtaposition ; and from the absence of proof to the contrary, we may presume that the ink has the same appearance in all the signatures. All the witnesses prove their handwriting, and declare that they would not have attested but at the request of the devisor. The first witness, Ripscomb, declares that he signed the testator’s name recognizing the mark. He proves that he witnessed the will when other persons not recollected were present, and he specifies minutely the particular occasion when that took place. He also remembers that the will was read to the testator at his desire; that he subscribed it within a few paces of him ; that he is positive it must have been acknowledged at the time, or he would not have attested it; and that the whole transaction took place outside the house in the open air, where they were weighing Sudbury’s fodder, on the occasion of his removal from the county. The two other subscribing witnesses recollect that they were at the testator’s house on the very occasion specified by Rips-comb ; and none of the witnesses ever attested any other will or paper for Dunnavant, as far as we learn. Here is a chain of evidence very satisfactory to my mind, in proof of the only doubtful fact, that the will was signed by the witnesses, or at least two of them, in the presence of the testator; for Ripscomb signed in his presence, and the others were at the same place, at the same time, attesting after him. But suppose Rips-comb only proves the due execution of the will as to himself, and the other witnesses establish no more than the genuineness of their signatures, being oblivious of all other circumstances; and that one of them would not *have attested, “ unless requested by the testator, and he had thought all things were regular.” (See Roberts’s evidence.) Is not this sufficient proof to authorize a court of probate to admit a will to record, when the rejection of the motion will conclude one party, whilst the granting of it will not preclude the other from asking an issue of devisavit vel non ? I clearly think so. The forgetfulness of the witnesses ought not to be permitted to defeat the will; and for this position the case of Dagwell v. Glascock, Skinner 413, is a very strong authority. But there is a case in 19 Johns. Rep. 386, where the reasoning of chief justice Spencer in delivering the opinion of the court is very apposite to this, and covers indeed the whole ground. I cite it because I think the opinion he expresses is strictly in accordance with well established principles of evidence. It is the case of Jackson d. Legrange v. Legrange. The will in question was witnessed by Quackenbush, Ran-sing and Wendell. Ransing was dead; Wendell was living, and a resident of the state ; but Quackenbush was the only witness called to prove the will. He established the genuineness of his own signature, and proved the handwriting of Ransing ; but he had forgotten every circumstance of the transaction, and did not even recollect that he had ever seen the testator. Yet from the circumstances of his name being subscribed as a witness, he supposed he must have seen it executed ; and he knew the requisites to a good execution of a will, being at that time about to be admitted an attorney in the courts of New York. It was held that this was not sufficient proof of the will, because Wendell was not produced. The chief justice said, “ Wendell oughtto have been called, inasmuch as Quackenbush did not prove the facts essentially necessary to the valid execution of the will. If Wendell had been called, he might have either proved or disproved these facts. If his recollection should also have failed him, still, if he could have proved his signature, then, on '-proving the signature of the testator, I should be of the opinion that the will had been sufficiently proved to entitle it to be read. The law does not require impossibilities ; and therefore, when the will has been executed a long period before the trial,i it is not ordinarily to be expected that the witnesses will be able to remember all the material facts. In this respect a will may be compared to a deed the signature of which is denied.”

The will in the case in Johnson was older than in this, but it was not thirty years old, and the circumstances of more or less antiquity is no otherwise material than as it may be supposed to effect more or less the memory of the witnesses. The principle is, that positive, direct proof of material facts may be dispensed within every case, where “it is not ordinarily to be expected that the witnesses will be able to remember” them. The period between the attestation and the probate might be so recent as to afford very strong, nay irresistible evidence that facts not remembered did not exist; and then all ground for presuming a due execution would be taken away.

A circumstance noticed in the case cited may be supposed to have had some weight; to wit, that Quackenbush knew the requisites to a good execution of a ' will. Here, Roberts did not know them; and Robertson the other witness says, if the testator had requested him to witness the will, he would have done so, whether he were present or not. It must be admitted that such declarations impair our confidence in the certainty of the inferences deducible from the other facts and circumstances; but still enough remains to authorize us to pronounce in favour of the will. The fact remains, that wills are usually witnessed in the presence of testators; and the other circumstances shew that the ordinary concomitants of attestation and subscription existed in this case; it being satisfactorily proved that in respect to the first witness every thing was regular. In *this particular, the case contrasts favourably with Jackson v. Regrange, where the first witness only proved his signature; and if he knew the requisites to a good execution, it did not follow that Wendell was equally well informed. Yet the chief justice held that if, in addition to Quackenbush’s testimony, Wendell should prove his signature merely, his recollection failing him as to every other circumstance, it would be sufficient.

For these reasons, I am of opinion that the order of the court below should be affirmed.

BROOKE), J.

I do not dissent from the opinion of a majority of the court, because I know the inutility, as regards the public, of a difference of opinion as to the fact on any state of the evidence submitted to a jury or a court of probate. As to the principle that all the requirements of the statute must be proved in order to establish a will, there can be no difference of opinion. As to the kind and degree of proof that is necessary to satisfy the statute, I differ with the majority of the court; nor do I think there is anything exorbitant in the requirement of proof to satisfy the statute, either in the case of Burwell and others v. Corbin and others, 1 Rand. 131, or in my opinion in the case of Dudley v. Dudley, 3 Leigh 436. In the first case, judge Roane did not differ with the rest of the court on the construction of the statute, but on the degree of proof of its requirements, as we differ in the case before us. None of the court in the case of Burwell and others v. Corbin and others denied the rule, that, upon evidence, inference may be drawn from the proof of one fact or several facts to prove another fact, in a proper case. In the case before us I do not object to that rule, but I am opposed to making such a use of it as to repeal the statute. I do not think that proof of a will in all particulars by one witness is enough to establish by inference that another, who is examined, and recollects '^nothing but his attestation of a recent will, was a witness to all that is proved by the first. To prevent perjury, the statute requires two witnesses. Now, in the case before us, is it more probable that Robertson and Roberts forgot the presence of the testator and that his mark was made by his direction, if in truth he was present and directed his mark to be made, than other facts not so impressive, which they relate? I will not notice the English cases: there is no difference between them and our own cases, except in the degree of proof which is required to satisfy the statute. Inference from one fact to prove another has been carried too far by the courts of both countries : the statute has been left out of sight, and the evidence treated as if all that was necessary was to prove that the testator executed the will. Putting it on that ground, one credible witness is as good as the two required by the statute; and if inference from his testimony is to supply the proof of another witness, required by the statute, the will is proved by one witness instead of two. The cases which, from necessity, admit of inferior proof to that which by the letter of the statute seems to be required, have no application to the case before us : as where all or some of the witnesses are dead, or out of the jurisdiction of the court; or as in the case in Skinner, where they were suborned to deny their signatures. In the first case, proof is admitted of their signatures ; and in the second, to contradict the attesting witnesses, and to prove their attestation of the will. But that is not our case. All the witnesses are alive, and examined to prove the will; no secondary evidence is called for. Only one of them proves the presence of the testator when he attested, and,.that his mark was mádé by the witness. The other two only prove their handwriting, and that they would not have attested, they think, unless the testator had requested them, and all things had been regular. They do not prove that he made his mark as his signature, *or that it was made in his presence and by his direction, nor that he was present when they subscribed their names ; two material requisites of the statute. These particulars they could not recollect, though they remembered other matter not so impressive. .In the case of Burwell and others v. Corbin and others, if the evidence of one witness was enough tó satisfy the statute, the evidence of Scrimger the first witness proved every thing that was required ; but if two witnesses were necessary, Barrick the second witness proved nothing but the acknowledgment of the testator that the paper writing was his will. He knew nothing of the signature, the factum of signing required by the statute : though Scrimger the first witness proved it, he did not. For the grounds of my opinion in that case, I refer to the cases there cited. My opinion in the case of Dudley v. Dudley, 3 Leigh 436, was founded on the same course of reasoning ; that is, that however full the testimony of one witness may be to prove a will, our statute requires two witnesses to the facts which are necessary to be proved. In England, three witnesses are required : and in Westbeech v. Kennedy, 1 Ves. & Beam. 362, two witnesses proved the will in every particular; and though the third witness did not prove the factum of signing, he proved that the testator sealed the will in his presence, which was regarded as proof of the signature. Now it does appear to me that the proof of the two witnesses in that case would not have sufficed, if the testator had not sealed the will in the presence of the third witness. In the case before us, one witness proves what is required by the statute. Suppose his testimony out of the case, and the testimony of Robertson and Roberts the only testimony ; it could not be said that theirs was sufficient. Neither of them proves the presence of the testator when they attested, nor that his mark, which stands for his name, was made in his presence and at his request. All they prove is their *handwriting as attesting witnesses. But that is held by a majority of the court to be sufficient, in addition to the testimony of Lipscomb the first witness ; and I .will not dissent from them, for the reason before stated.

TUCKER, P.

The probate of this will depends mainly, I think, upon the question how far the defects of the memory of the witnesses can be supplied by mere inference from their attestation; for although there are some of the requisites of the statute proved, there are others unquestionably at which we can only arrive by implication.

There is no question, I think, that if the subscribing witness to a deed or will be dead, or absent from the country, or otherwise so situated that his testimony cannot be had, the proof of his handwriting is all that is necessary, and his attestation is a sufficient ground for presuming that the instrument has been executed with all the solemnities and ceremonies required by the law. This is confessedly the case with deeds and obligations, as appears from the numerous cases cited in Phillips on Evidence, p. 362. It is not less the case with wills ; for if the witnesses are dead, or insane, or out of the jurisdiction, so as not to be amenable to process, their handwriting may be proved, and it is then a question for the jury, whether, under the circumstances of the case, it is probable that all the formalities of the statute were regularly observed. This was expressly decided in Hands v. James, Com. Rep. 531; Croft v. Pawlett, 2 Strange 1109 ; Brice v. Smith, Willes 1, and as we shall presently see, our own court has acted upon similar principles. It is true that in these cases all the witnesses must be dead, or not to be had, for otherwise the due execution of the will cannot be established by proof of the handwriting of one or more. In a trial at law one of the subscribing witnesses, and in a question of probate two of them, may suffice to prove a will, provided they can *prove all the solemnities required by the statute. But if they can only prove their own signatures, the other witnesses, if living, must be produced, or if dead, their handwriting must be proved ; and it is then, as I have said, a question for the jury or the court of probate, whether, under the circumstances, all the requisites of the-statute have been complied with. See Jackson d. Legrange v. Legrange, 19 Johns Rep. 386.

In the case at bar, then, if all the witnesses were dead, the proof of their handwriting would have justified the court of probate in inferring that the will had been executed with all the solemnities required by the statute. But the witnesses have all been examined. They have all proved their own attestations. They all swear, too, that they would not have attested the will, unless it had been acknowledged by the testator, and they had supposed all things'regular. This has been held not only sufficient proof of a deed (1 Binney 436, 2 Hay 338, 1 Cox 10, cited Phillips on Evid. 358, in note ; 2 Dall. 96,) but it has also been considered adequate in the case of a will. In Jackson v. Legrange, 19 Johns. Rep. 389, Spencer, chief justice, said, “ If the subscribing witnesses prove their signatures, though they may not be able to recollect the delivery, yet if they.declare that they never subscribed as witnesses without a due execution of a deed by a grantor or obligor, such proof would be sufficient. In this respect, a will may be compared to a deed, the execution of which is denied.” I think, then, from the evidence in this case, we must take it as sufficiently proved that the testator acknowledged the instrument in question as his last will.

The question still recurs whether, as the witnesses have been actually examined, and have failed to prove a compliance with all the requisitions of the statute, that compliance can be inferred from their attestation.

It is very clear that if the witnesses denied their attestation, or would not swear that they saw the testator *execute and publish his will, or alleged the incapacity of the testator, their handwriting might be proved and their testimony controverted. Skin. 413; Lowe v. Jolliffe, 1 W. Black. Rep. 365. But in these cases there must be evidence produced to contradict their testimony. How is it where, as in this case, they do not negative a compliance with the statute, but merely have forgotten the circumstances ? It seems to me, that upon fair analogy, the question should be decided as it would be if the witness were dead and his handwriting proved. And so accordingly, I think, are the authorities to be understood. Thus, in the case of Dagwell or Dagnee v. Glascock; Skinner 413; Cases Temp. Holt. 741, there were three subscribing witnesses. One of them would not swear that he saw the restator seal and publish his will. Now, three witnesses were absolutely necessary to the validity of the will, so that here was a failure of proof as in our case; but the court, upon proof of his handwriting, held the will to be sufficiently proved. This case seems to me to be in point. So in the case of Jackson v. Degrange, before cited, chief justice Spencer, speaking of the necessity of calling the other witness to the will, observes, “ If his recollection should also have failed him, still if he could have proved his signature, then, on proving the signature of the testator, I should be of opinion that the will hadbeen sufficiently proved to entitle it to be read.” That is to say, where the memory of the witness fails, the proof of his signature will justify an inference that all the requisites of the law have been complied with. Then comes the following remark: “The law does not require impossibilities, and therefore, where the will has been executed for a long period before the trial, it is not ordinarily to be expected that the witnesses will be able to remember all the material facts and- in this regard he likens a will to a deed, where, if the memory of the witness fail as to actual proof of delivery, it may still be inferred *from his attestation, and his swearing that he would not have subscribed it as a witness without a due execution.

Then comes the case of Smith v. Jones, 6 Rand. 33. In that case the witness, mrs. Jones, fell short of the full proof of the requisites of the statute. She neither proved that the name of the testator was written by the other witness at the testator’s request, nor did she prove the attestation to have been in his presence. Yet judge Carr, delivering the opinion of the court, says, if Pendergast (the other witness) had proved the same facts, “we think the evidence of these subscribing witnesses would have proved circumstances from which a court of probate ought to have concluded that the will was signed by Pen-dergast for the testator, in his presence and by his direction, and moreover was attested by two witnesses in his presence.” Here, then, these important substantive requisitions of the statute were inferred, although the witnesses were present at the trial and examined, and yet failed to prove them. And this seems truly reasonable; since it never could have been the design of the statute to vacate a will which was duly executed, whenever the witnesses to it have forgotten any material circumstances attending the attestation. They are indeed always called upon to prove the will, not because the statute requires that they shall prove a compliance with al'l the requisites of the law, but because they would be most likelv to prove or disprove them, and because, upon principles of common law, the attesting witness to every instrument must be produced, if living and within the power of the court.

The case of Bond & wife v. Sea well, 3 Burr. 1773, cited by judge Carr, is deservedly considered by him as a strong case in support of this doctrine of inference. In that case the will was on two sheets. It was deemed essential that both sheets should have been in the room at the time of the acknowdgment. Yet two of the ^witnesses “never saw the first sheet, nor was it produced to them, nor was it upon the table.” Nevertheless lord Mansfield was of opinion that the jury might presume, and ought to presume from the circumstances, that essential fact, though the witnesses did not and could not prove it.

Next comes the case of Boyd v. Cooke, 3 Leigh 32. In that case the position taken in Smith v. Jones, that a court o£ probate occupies the place of a jury as to questions of fact, and that its province is to draw all just inferences from the evidence, was distinctly maintained. Bastly, in the case of Dudley v. Dudley, 3 Deigh 436, the judges reiterated this doctrine, and moreover declared that in the absence of all proof to the contrary, the acknowledgment and attestation gave rise to an irresistible inference that the instrument in that case had been previously signed ; and they sustained the will upon this proof, although the testator’s name was not signed by himself, and although only one of the witnesses proved that it was signed by another person for him, in his presence and by his direction.

Rrom the whole of these cases, then, I deduce that on a question of probate, the defect of memory of the witnesses will not be permitted to defeat the will, but that the court may, from circumstances, presume that the requisitions of the statute have been observed; and that they ought so to presume from the fact of attestation, unless the inferences from that fact are rebutted by satisfactory evidence. Upon these principles, there can be no difficulty in the present case. Dipscomb’s testimony establishes his own attestation and his conviction that he never would have attested if the testator had not acknowledged the will. The other witnesses prove the same. The acknowledgment, then, is established; and from this acknowledgment of the will, we infer an acknowledgment and recognition of the signature. To use the language of judge Cabell, “It *is not usual for men to acknowledge papers, either as deeds or wills, and to call on others to attest them, before they are signed. Such a thing may happen ; and when it is proved to have happened, the acknowledgment and attestation will be disregarded. But in the absence of all proof to the contrary, the acknowledgment and attestation give rise to an irresistible inference that the instrument had been previously signed.” ' It is moreover a recognition of the signature; for when, taking the paper already signed by his mark and with his name written by Tipscomb, he acknowledges it as his will, he of course acknowledges the whole, .and not a part only ; and still less can we presume that he designed to exclude the signature from that acknowledgment, without which it would have been no will. But if the signature is acknowledged as his, we are inevitably led to conclude from that acknowledgment and all the other circumstances, that Uipscomb affixed it at his request; and thus proof would be full, even if his mark was not made with his own hand. But that it was so made I cannot doubt, both because of its being most usual for the party to make his mark, and because the paper calls it his mark, besides the recognition of the signing and sealing by the last clause in the will, which he must have heard when the rest of the will was read to him. See 7 Taunt. 251.

The execution by the testator being thus established, we come next to the attestation, and as there is no proof rebutting the inference the attestation was according to law, we must take it to have been so; and thus the execution of the will must be considered as fully proved.

Upon a very careful consideration, therefore, of the whole case, I am of opinion to affirm the sentence. Nor do I apprehend any evil from this decision. It may, perhaps, sometimes lead to the establishment of wills not duly executed, as doubtless may be the case *also where the witnesses are all dead or absent, and every thing is presumed from their attestation. But far greater mischiefs would arise from a contrary decision, which should make the rights of every devisee and legatee depend not only upon the honesty, but also upon the slippery memory of witnesses. Under such a decision, no man could be sure of dying testate, since the forgetfulness of a witness would frustrate all his precaution ; and a question of title by will, which, in the spirit of the statute of frauds, the legislature designed to rest upon written evidence alone, would after all depend upon the integrity and the memory of those who were called on to attest the instrument. The consequence would be, that I may have a good will by me to-day, but if I live five years it may become a void instrument, because one of the witnesses to it cannot recall some ceremony of its execution. Such a consequence I would not aid in bringing about. It would tend, I have no doubt, to multiply the attempts, already too common, to set aside wills; since the chances of success must be very much increased, if the frailty of human memory is to be called in to the aid of the discontented heir.

Sentence affirmed.  