
    Mary Chase and Others, Appellants, from a Decree of the Probate Court, versus Levi Lincoln, Executor.
    The three subscribing witnesses to a will must be produced at the probate thereof! if living, and subject to the process of the Court.
    This was an appeal from a decree of the judge of probate for this county, proving, approving, and allowing the last will and testament of Thomas Leggatt, Esq., deceased.
    Issue being joined to the country upon the sanity of the testator, at the time of executing the will, the respondent called two of the three subscribing witnesses to the will.
    
      F. Blake, of counsel for the appellants,
    objected to the admission of these witnesses, unless it was first proved that the third was either dead, or out of the reach of process from this Court; and he cited the case of Townsend vs. Ives, 1 WUs. 216.
    The respondent then filed an affidavit, stating that the absent witness was, at the time of executing the will, a laborer in the respondent’s service ; that when his time of service expired, he left the respondent, and this part of the country, and had gone, as was understood, into some part of the district of Maine; [ * 237 ] that the respondent had caused inquiry to * be made for him, but had not succeeded in finding his present place of abode.
   The Court

observed that the legislature, in requiring three subscribing witnesses to a will, did not contemplate the mere formality of signing their names. An idiot might do this. These witnesses are placed round the testator to ascertain and judge of his capacity, and the heir has a right to insist on the testimony of all the three witnesses, to be given to the jury . They must therefore all be produced, if living, and under the power of the Court. If it be impossible to procure any one of them, the Court will proceed without him ex necessitate rel. But no such impossibility appears in this case. For any thing that appears, the absent witness might, with due diligence, have been found and summoned. The not producing of him may lead to a presumption that his testimony, if produced, would be unfavorable to the probate of the will. At any rate, the rule is too important and too explicit to be dispensed with on light grounds. And they refused to examine the two witnesses produced.

The appellants afterwards waived their right to the production of the third witness; and the decree of the Court below was after-wards affirmed.

Memorandum. Nathaniel Paine, Eleazer James, and Seth Hastings, Esqs., were, at this terra, appointed examiners of counsellors and attorneys, within the county cf Woretster 
      
      
        Powell on Devises, 69, 70.—[Vide Powell, by White, 1 vol. p. 637, where it is said, this is only the practice in the courts of equity, and that proof by one witness is good at law, See, too, 2 Starkie's Ev. 922, 2d Land. ed.—-Ed.]
     