
    CONSTITUTIONAL COURT,
    COLUMBIA,
    APRIL, 1803.
    Hopkins v. Albertson.
    .Whore the subscribing witnesses to a will, containing a devise of lands, áre all dead, the handwriting of each, as well as the hand writing 6Í the testator, must be proved, before the will can be admitted in evidence. One of them would be sufficient, it he were produced, and proved that the will was executed Conformably to the provisions of the statute ol frauds ; but proof of the mere handwriting- of some of them does not raise the presumption that all of them subscribed in the presence of the testator. Bay, J. dissenting.
    Motion for a new trial. The action was trespass to try titles ; and was tried before Brevard, J. in, Chester district. The plaintiff claimed as devisee under the last will of J. Hopkins deceased. It was proVed, that the three witnesses, whose names were subscribed to the will, were all dead. The handwriting of two of these witnesses, and the signature of the testator, were proved ; but the hand writing oí the other witness was not proved. To the admission of the 'will in evidence, it was objected, that the proof of its execution was Slot sufficient, agreeably to the statute of frauds, which requires" all devises of land to be attested and subscribed, in the presence of the devisor, by three or more credible witnesses. V. L. 82. The Judge however overruled the exception, conceiving, that inasmuch as one witness only is sufficient in general to pravo a vvill; ■ and as it is not necessary that the witnesses should all attest in the presence of each other ; 1 Str. 620 ; Esp. Dig. 467 ; Bull. N. P. 262 ; 2 Str. 1253 ; Grimke's Law of Ex’ors. 173 ; and' as even a disinterested witness, not one of the witnesses to the execution of the will who have subscribed it, may prove it', where the subscribing witnesses are dead or absent' (Torn thé state ; therelore the evidence was sufficient, unless rebutted by some evidence in opposition thereto, to authorise the admission of the will under the circumstances of the case.
    The motion was argued by Nott, for defendant, and Smith, for plaintiff.
    For the defendant it was insisted that there is a clear distinction between the evidence requisite to prove deeds, and evidence fo prove, a devise of land. In the case of a deed where the witnesses are d&ad', or absent from the country, proof of the handwriting of ene of them, together with proof of the hand writing of the obligor, mav be deemed sufficient evidence of the execution of the deed,' to be left to the jury upon the issue of non est factunl. 7 T. R. 276. But not so in regard to wills of land, because the statute of frauds requires the attestation' and subscription of three witnesses ; and therefore it is necessary to prove that three witnesses did attest and subscribe the will, by the best evidence the nature of the case is capable of.
    On the other side, it was contended, that inasmuch as the will ap. jpeared to be attested and subscribed by three witnesses, who’ were proved to be dead, and as the handwriting of two of them was proved ; the presumption was sufficiently strong to go as proof to the jury of the due execution of the will, and should be considered as sufficient proo! until rebutted by evidence to the contrary. Run. ningtonon Ejectment, 265. One witness is sufficient to prove a will against the heir at law ; and if he requires it, he may call the rest. 2 Esp. Dig. 468. The statute of frauds is altogether silent with respect to the manner of proving wills. It must be left to the discretion of the courts, guided by the general principles of law. The statute requires the attestation ot' wit .esses to be in presence of the testator; yet it need not. appear on the face of the wilt to h ave been so done, tint is nl .tter of evidence to lie left to a jury. 2 Str. 1109, Bull. N. P. 264. It is not necessary that the witnesses should attest in the presence of each other, nor that the witnesses sho.t Id be present together at ihe execution. Esp. Dig. 467. The due execution according to the statute must be collected from evidence per curiam.
    
   Waties, Johnson, and Tkezevaívt, Justices.

The statute requires three witnesses to one single act. of execution, and not throe several executions before a single wimess to each only. Bull. N. P. 263. One witness may prove the will, if he prove all the requisites; as that it was attested and subscribed by himself and two others, &c. i. but here the proof was not such as amounted to a sufficient proof Of all the requisites, for it might have been that only the two witnesses whose signatures were proved actually subscribed. From necessity it may be presumed that the attestation was in the presence of the testator. See 2 Con. Rep. 531, 2 Str. 1109. But there is no necessity to presume that the other witness, whose signature was ltot proved, attested a..d subscribed the will; but this should have been proved by me best evidence that the nature of the case admitted of, namely, proof of the band writing of such witness.

Bay, J.

dissenting, said be thought that after a great lapse of time, it mtgbt operate great injustice i i many cases, to lay down so rgid a rule of evidence in regard to wills ; as in many cases of wills of old date where the w it>.esses are dead, It is impossible to prove the hand writing of the witnesses, being often persons very little aceus. toined to sign their names, as nurses, and female friends, frequently called upon in a hurry, when the testator is in extremis; and therefore he thought it better answered (he ends of justice to relax the rule, and allow the presumption of a due execution of a will to prev til upon proof such as was given in this case ; and he thought a new trial-ought not to be granted.

A new trial was granted.

Grimke, J. absent.

Note. — See Hands v. James, 2 Com Rep. 531, wdiere it was left to the jury to say, whether the witnesses to a will, who were all dead, put their names in presence of the testator 2 Eq. Ca. Abr. 764 See also Bishop v. Burton, & al. 2 Con Rep. 614, 2 Eq. Ca Abr. 765, 3 P. Wms 192. Proof of the handwriting of the devisor, ami of two of the subscribing witnesses, wko were proved to bo dead, and that the third subscribing witness ivas believed to be dead, and that the handwriting was his, as was believed by the witness, who proved the rest, was deemed iusulheient. 'Xhe proof should be positive of the death of the subscribing witnesses.  