
    *Dudleys v. Dudleys.
    February, 1832.
    Wills — Acknowledgment— Sufficiency— Case at Bar.— Testator’s will is written for him by R. P. who tes-tiiies, that he also signed testator's name thereto, in the presence and at the reciuest of the testator, and then subscribed his own name as a witness in the testator's presence: and another witness, B. H. testiiies, that some years afterwards, the witness being at testator’s house, it was suggested to testator, that that was a favourable time to have that will witnessed: testator assented: the paper inquestion was produced; witness tools: it near to testator and inquired, whether he acknowledged it; testator said he did; upon which, this witness subscribed as a witness in testator’s presence: Held, the acknowledgment of the paper by testator to the second witness, was a recognition of the signature thereto as his own, and evidence from which a court of probat may well infer, that the testator’s signature to the will was written by his authority; and so here are two witnesses to the execution of the will, as required by the statute; dissentiente Brooke, J.
    Case Doubted. — The authority of Burwell v. Corbin, 1 Rand. 131, doubted.
    Appellate Practice — Credibility of Witnesses. — Upon a question of probat of a will, the testimony of one of the attesting witnesses is directly contradicted by that of another; the county and circuit courts both give credit to the witness for the will: on appeal from the sentence of probat. Held, that the court of appeals, on a mere question of credibility of witnesses, will always presume, that the inferiour courts, which saw and heard the witnesses examined, decided correctly.
    A paper purporting to be the last will and testament of Gwin Dudley, late of Franklin, was offered for probat in the county court of Franklin, by Lewis and Gwin Dudley, and the probat was contested by Thomas and Levi Dudley. The county court was of opinion, that the paper was the true last will and testament of the deceased, and ordered it to be recorded, generally; that is, as a will both of real and personal estate. Thomas and Levi Dudley appealed from the sentence, to the circuit court of Franklin, which affirmed it; and then they appealed to this court.
    At the hearing in the circuit court, the court, at the instance of the appellants, ordered the whole of the evidence to be reduced to writing, and made part of the record ; which was as follows:
    The will in question, bore date the 6th January 1818. There were four subscribing witnesses to it; namely, Robert *Pasley, Bernard Hendrick, Phoebe Maxey and Sally Pasley; and it appeared by the attestation, that the first two wrote their names themselves, and the other two made their marks, their names being written for them by some other person.
    1. Robert Pasley testified, that he wrote the will, and signed the testator’s name thereto, in the presence and at the request of the testator, and that he subscribed his name as a witness, in the testator’s presence. That the testator was of sound mind at the time. That, after the will was written, the testator was apprehensive he had not secured a slave in the will mentioned, to one of his daughters and her children, and asked the witness if the will could be altered so as to effect that end; the witness told him it could, and altered the will, by erasing a part and inserting the alteration ; but the witness could not say when the alteration was made. That he wrote Phoebe Maxley’s name as a witness to the will, in her presence; he did not recollect, whether she made her mark or he made it for her; but she was present, and he' would not have put her name to the paper, unless she had been present, and in the presence of the testator.
    3. Bernard Hendrick testified, that he being at the testator’s house in the spring of the year 1825, one of the appellees remarked loud enough to be heard by the testator, “that that was a favourable time to have that will witnessed;” the testator assented; and a paper was produced, which was the will in question. That the witness took it near to the testator, and inquired whether he acknowledged it; the testator said he did ; and the witness subscribed the paper in the testator’s preserice. The testator was, at the time, of sound disposing mind and memory; he was above eighty years old.
    3. Phoebe Maxey testified, that she could not write; her name might have been put to the will, but she did not make her mark, and had no recollection that she requested Pasley *to write her name. That the testator’s wife came to the kitchen where she was, and said she wanted her to go to the house, and witness a will; that she (Mrs. Dudley) would talk for her. That the witness went in, but objected to witnessing the will, unless it was read to her; Pasley refused to read it. That the testator told the witness, afterwards, that she must go to court, and testify that it was not his will, and she promised him she would never bear witness in support of it. That the testator said, that when he executed the will he was out of his senses: he always said, that it was not his will, that his wife had won the victory, and that his household was managed “not by whom it should be.” That the witness Pasley, altered the will in the testator’s absence, during the summer after the execution of it. And that Pasley had threatened, that if she came to court, he wouíd have her ears cropped, but if she did not go, he would prote.ct and befriend her.
    The other subscribing witness, Salley Pasley, was not examined; why, did not appear.
    4. There were two witnesses, who testified, that the witness Robert Pasley told the witness Maxey, he had heard, that she charged him “with writing on Dudley’s will,” and that she denied she was a witness to the will; she avowed both; upon which Pasley told her, that if she said that on oath, she would swear to a lie, and would be put in the stocks, and have her ears cut off, or, that he would have her ears cut off.
    5. There were three witnesses who testified, that the witness Pasley was esteemed a man of truth and respectability.
    6. One witness testified, that, about the year 1823, in conversation with the testator, the witness asked' him whether he had a will? and he answered, that his wife had a will for him, but he did not intend to die and leave that will; that the law made a good will, and he intended the law should make his will.
    Johnson for appellants.
    1. The testimony of the subscribing witness Pasley, is directly contradicted and impugned *by that of another subscribing witness, Maxey. It cannot be doubted that the testimony of Pasley is essential to the due proof of this will. Whether a will ought to be established upon the strength of testimony -thus contradicted and impugned, is submitted to the court. But even Pasley does not say, that, after he wrote the will, it was read to the testator before it was executed. 2. Supposing credit given to Pasley, there is but a single witness to the will. Hendrick does not prove the execution of it as a will of real estate. He says, the testator acknowledged the paper, and he attested in the testator’s presence; but the testator’s signature was put to it by Pasley; and Hendrick does not say, that the testator declared that he had authorized Pasley to sign it for him; nor is it proved, that Pasley signed the testator’s name by his direction and in his presence, as the statute requires, by any evidence but that of Pasley alone. His signing for the testator by his direction and in his' presence, is an essential requisite to the due execution; and every fact essential to the due execution of a will of lands, every material requisite of the statute,, must be proved by two witnesses. Burwell v. Corbin, 1 Rand. 131, is directly in point to this case. And two witnesses are necessary also, to prove a will of personal estate. Redford’s adm’r v. Peggy, 6 Rand. 316.
    Heigh for the appellees.
    1. The first question is, simply, which shall be believed, Pasley or Maxey? They were examined in open court, both in the county and in the circuit court; and the justices of the county court (who probably knew them), and the judge of the circuit court, concurred in giving credit to Pasley. This court, reviewing the sentence of those courts, upon the written depositions of the witnesses, will, as it always has done in such case, give intire confidence to the concurring opinions of the county and circuit courts. 2. If it were necessary, I should ask the court to reconsider the points decided both in Burwell v. Corbin and Redford’s adm’r v. Peggy. But *Burwell v. Corbin came before the court on a special verdict; the court could infer nothing, intend nothing. In this case, the court is sitting as a court of probat; its province is, like a jury, to draw the natural, fair and just inferences of fact from the evidence. The distinction was taken in Smith v. Jones, 6 Rand. 33, and approved in the recent case of Boyd v. Vass, ante, 32. This will had been signed for the testator, long before Hendrick attested it; and to Hendrick, the testator acknowledged the will so signed. He thus acknowledged the signature to be his; and no matter when or by whom it was put to the will, the clear inference from the testator’s acknowledgment, was', that it was duly put there. There are, then, two witnesses to the due execution of this wi,ll in all respects.
    
      
       Wilis — Acknowledgment — Sufficiency. — On this question the principal case is cited in foot-note to Rosser v. Franklin. (5 Gratt. 1; Cheatham v. Hatcher, 30 Gratt. 58. and note\ Clarke v. Dunnavant. 10 Leigh 27, 29 , 31: Sturdivant v. Birchett, 10 Gratt. 78; Nock v. Nock, 10 Gratl.113; Parramore v. Taylor, 11 Gratt. 243.
      Same -Probat Court — Province.—The principal case is cited in note to Clarke v. Dunnavant. 10 Leigh 13; Sturdivant v. Birchett. 10 Gratt. 89, 103; Nock v. Nock, 10 Gratt. 112. See monographic note on "Wills."
    
    
      
       Appellate Practice — Credibility of Witnesses, — The court of appeals, on amere question of credibility of witnesses, will always i>resume, that the inferior courts, which saw and heard the witnesses examined, decided correctly. For this proposition the principal caséis cited and approved in the following: -Foot-note to Jesse y. Parker, 6 Gratt. 57: Nock v. Nock, 10 G-ratt. Ill; Parra more v. Taylor, 11 Gratt. 240: Wickham v. Lewis Martin &Co., 13 Gratt. 451; Mitchell v. Baratta, 17 Gratt. 452,465, and note; Young v. Barner, 27 Gratt. 105; Lamberts v. Cooper, 29 Gratt. 68; Pairo v. Bethell, 75 Va. 828: Hartman v. Strickler. 82 Va. 238; Webb v. Dye, 18 W. Va. 385; Coliman v. Hedrick, 32 W. Va. 129, 9 S. IS. Rep. 69; State v. Barnett, 34 W. Va. 78, 11 S. IS. Rep. 736; State v. Workman, 35 W. Va. -374, 14 S. E. Rep. 12; State v. Hunter, 37 W. Va. 745, 17 S. E. Rep. 308; State v. Hull, 45 W. Va. 779, 32 S. E. Rep. 245.
      See also. Akers v. De Witt, 41 W. Va. 229, 23 S. 13. Rep. 669. and monographic note on "Appeal and Error” appended to Hill v. Salem, etc., Turnpike Co., 1 Rob. 263.
    
    
      
       W'hat this alteration was, did not distinctly appear. The will in question contains no devise of real estate to any of the testator’s daughters. — Note in Original Edition.
    
   CARR, J.

This is a question of probat. There is a direct clashing of evidence in two of the subscribing witnesses to the will: both cannot have sworn truly. The county and circuit courts, having these witnesses before them, have given credit to the witness in favour of the will. Taking him to have spoken the truth, I think his evidence, with that of Hendrick, establishes this as a good will of lands. It was said, in the argument, that the point in this case, is decided by Burwell v. Corbin; that the distinction taken in Smith v. Jones, between a court of probat acting upon evidence, and a court of chancery, acting on a special verdict found on an issue of devisavit vel non, would not reconcile the cases; and that we must overrule Burwell v. Corbin, if we sustained the will here. For myself, I must say, I think that case went too far. Yet there is, surely, a sound distinction between a court of probat acting upon evidence, and a court deciding the law upon the facts found by a special verdict. Upon this distinction, the court, in Smith v. Jones, meant to leave Burwell v. Corbin undisturbed: and I am not disposed, at present,, to' inquire, whether, on the strict and narrow ground of a special verdict, it may not stand: but, certainly, I can never consent that it shall-govern a *court of probat, in deciding upon evidence. I am for affirming the sentence.

CABELL, J.

This is a controversy as to the probat of the will of Gwin Dudley, as a will of lands. It was established by the concurrent sentences of the countj' and circuit courts of Franklin; and the evidence for and against the will, having been spread upon the record, the case now comes before this court, on an appeal from the sentence of Ihe circuit court, upon that evidence. There are four subscribing witnesses to the will. One was not examined at all. Another, Phoebe Maxey, so far from supporting the will, deposes to facts, which, if true, would invalidate it, and would shew that R. Pasley the first subscribing witness is totally unworthy of credit. This would leave but a single witness in support of the will. But it is manifest that both the courts below disbelieved Maxey, and gave full credit to Pasley. There is nothing in this record sufficient to destroy the credit of either of these witnesses, except it be the testimony of the other. The credibility of witnesses depends on a variety of circumstances, which may be seen and known by those who are present at their viva voce examination, but which cannot be transmitted through their written testimony, to an appellate court. On a mere question of credibility, therefore, when there is nothing in the record to throw light on the subject, this court will always presume, that the inferiour court, that saw and heard the witnesses examined, has decided correctly.

This will, then, depends on the sufficiency of the testimony of R. Pasley and Hendrick.

I shall first inquire as to the sufficiency of Hendrick’s testimony. In the case of Smith v. Jones, judge Carr, speaking for the court, draws a distinction between a case where the court is deciding upon a special verdict, as in the case of Burwell v. Corbin, and a case like the present, where the court has to decide, as a court of probat, on the *evidence given for or against a will: in the former case, wre are limited to the facts as stated; we can deduce no inference from them: in the latter, we may infer every thing from the evidence, that a jury might fairly infer. I sat in Burwell v. Corbin. It is due to candor to admit, that I did not proceed on any such distinction as that taken in Smith v. Jones. My opinion would not have been different, at that time, had the case stood on a statement of the evidence, and not on a special verdict. But I have had occasion to reconsider, with great attention, the case of Burwell v. Corbin, anj I have come to the conclusion, that the decision can be justified, only on the ground that it -was on a special verdict; and that, even in that aspect of the case, it ought to have been sent back for a more perfect finding of the facts.

Proceeding then on the principle, that it is competent to this court, to infer from the evidence, whatever a jury might fairly infer from it, let us see what is proved by the testimony of Hendrick. I will premise, however, that the only requisites to a will of lands, are, that it shall be in writing, and signed by the testator, or by some, other person in his presence and by his direction ; and, if not wholly written by the testator, that it shall be attested by two or more credible witnésses, in his presence. But the statute does not prescribe the kind or degree of proof, by which the fact of signing, whether by the testator or some person for him, shall be established. It is not necessary, that the witnesses shall see the signing. Proof of an acknowledgment of the signature by the testator, is as sufficient to prove the signature, as proof by the witnesses that they saw the act of signing. Grayson v. Atkinson, 2 Ves. sr. 454; Ellis v. Smith, 1 Ves. jr. 11. In like manner, an acknowledgment, that a writing to which a man’s name is signed, is “his will,” is proof that he signed the will. Westbeech v. Kennedy, 1 Ves. & Beam. 362. Now, the writing in controversy, purports to be the will of Gwin Dudley, and his name is signed to it as the testator; and Hendrick deposes, that this very paper was acknowledged by Dudley, and that he subscribed *his name, as a witness, in his presence. It is true, he does not expressly say, that Dudley’s name was or was not signed to the will, at the time it was acknowledged. But 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. A contrary course would defeat a vast number of deeds and wills; for it may often happen, and frequently does happen, that a witness, not only does not remember to have seen the signature, but he does not remember the acknowledgment or the attestation ; but when he sees his name subscribed by himself, as a witness, and knows that he would not have witnessed a blank or unacknowledged paper, he feels no more doubt of the due execution of the paper, than if he distinctly recollected all the circumstances. We must take it, therefore, that this will was signed, when it was acknowledged before the witness Hendrick. That acknowledgment is proof, prima facie, that it was signed by the testator himself. But if the signature was, in fact, by some other person, then the acknowledgment is a ratification of the signature; and from that ratification we may fairly infer, that the signature was made in his presence, and by his direction. Therefore, I am of opinion, that the testimony of Hendrick is full and ample.

As to the testimony of Pasley, he says, that he wrote the will, and signed the testator’s name, in his presence, and at his request, and that he subscribed his name as a witness in the presence of the testator. This testimony was objected to by the counsel for the appellants, because it did not state that the will, after having been written, was read to or by the testator. But I think we may fairly infer from the testimony, as it now stands, that the will was written according to instructions given by the testator, and that as it was written *in his presence, he was sufficiently acquainted with its contents.

I think the sentence should be affirmed.

BROOKE; J.

The case for Burwell v. Corbin (which has been much commented on, and, in my opinion, not correctly understood) was a case of an anomalous character; but the principle decided by it, was, X think, intirely correct. It was an issue of devisavit vel non out of chancery; and, by the acquiescence of the parties, if not by their express consent, the jury which tried it, was permitted to find such evidence as it gave credit to. The verdict was not found as a special verdict; if it had been, it wpuld have been sent back, that the facts and not the evidence of facts, might be found. It, therefore, left the inquiry as to the validity of the will, as open as if the case had stood on an appeal from the sentence of a court of probat. And the case was so treated here, as may be seen by a reference to the opinions of all the judges. The material inquiry in the case, was, whether the factum of signing the will, by the authority of the testator, must be proved by two witnesses under our statute? In examining the testimony found by the jury on that point, the first question was, whether, one witness having proved the signing of the will by Corbin, at the request of the testator, his acknowledgment to a second witness, who did not see the signing, that the paper produced was his will, was proof to witnesses, that it was signed by Corbin, by the testator’s direction, at his request and in his presence. I said, that the question, whether the factum of signing must not be proved by all the witnesses, had been much discussed by the judges in England, from the case of Lemayne v. Stanley, down to the case of Grayson v. Atkinson, and (I might have said) to the case of Westbeech v. Kennedy. In Grayson v. Atkinson, lord Hardwicke calls the acknowledgment of the testator, that it was his signature, proof of the factum of signing by him, in some sense; and explains what he meant, by the example *he put of the obligor of a bond acknowledging to the witness that it was his signature. In this case, then, the acknowledgment by the testator, that the signature was his, was deemed equivalent to proof, that the witness saw him sign.the will, as seems to have been before required, and was much stronger evidence of the factum of signing the will by the testator, than the bare acknowledgment by the testator' that it was his "will. And in Westbeech v. Kennedy, it is very clear, that the bare acknowledgment by the testator, that therwriting was his will, was not held to be equivalent to proof of the factum of signing by the testator. There, two witnesses having proved the will according to the statute, the question turned on the evidence of the third witness, Henry Boys: his testimony maj' be seen by turning to the case. The testator did more than acknowledge to the witness, that it was his will: he also sealed the will in his presence; which was said by the counsel, sir S. Romilly and Mr. Parker, to be a recognition by the testator of his signature; but it was not said or pretended, that the bare acknowledgment that it was his will, or the publication of it as his will, to the witness, in the absence of the fact that he had sealed it in his presence, was a recognition of his signature. And I have seen no case, in which the bare acknowledgment of the will to a witness, in the absence of all proof that it was signed at the time by the testator, or by some one for him by his direction, was. held to be a recognition of his signature, equivalent to proof of the factum of signing by him or some one for him. As to the latter, in the case of Ellis v. Smith, the acknowledgment of the signature by the testator, was held to be sufficient proof of the signing by him: but lord Hardwicke said, “it has been hinted, that this decision would lead the way to farther deviations from the statute, and, by consequence, would allow a testator’s declarations, that another signed for him, to be good : but authority given by a testator, is a collateral thing, and a thing that ought to be proved? consequence is not to be built on consequence:” he does not say *how proved: but can it be doubted, that he meant proved according to the statute, or by some equivalent proof, which the acknowledgment of the testator was not? This of itself would justify the decision in Burwell v. Corbin. But it is said, that, in that case, we had the testimony of Scrim-ger, the first witness, that Corbin had signed the will for Burrell, by his direction &c. and we should have taken it to have been signed, when Burwell acknowledged it to be his-will, to Braddick, the second witness. In Westbeech v. Kennedy, there were two-witnesses who had proved the signature of the testator, before Henry Boys, the third witness, was called; yet the acknowledgment of the testator, that it was his will, would not have been held a recognition of his signature, if he had not sealed the will in his presence; an act which naturally follows, and does not precede, the act of signing, and was of itself a recognition of the signature. It must be admitted, that a paper attested before it is signed, is not a will under the statute; that the statute requires the attestation of two witnesses, after it is a perfect will. If all the witnesses die, or are out of the jurisdiction of the court, then, of necessity, proof is admitted of their handwriting, and is all that can be required to identify the paper attested by them. But if they are present, all must identify the paper attested by them. In such case, the statute requires that two witnesses shall prove the factum of signing by the testator. Suppose he acknowledge the will only, before both of them, and before it is signed, as was the casein Burwell v. Corbin, 1 Rand. 131, as to one of the witnesses; would such an acknowledgment be a compliance with the statute? The witnesses, in such case, by looking at their signatures, might identify the paper they attested; but they could not say, that it was a will executed by the testator by signing his name to it. This would open the door to fraud: a paper not signed by the testator, but afterwards by another, might be palmed upon a court for a will. X have seen no case, in which the acknowledgment of the testator, that the paper was his will, in the absence of all proof that it *was signed by him at the time the acknowledgment was made, has been held a recognition by the testator of his signature.

In Smith v. Jones, the point in Burwell v. Corbin was not involved. The ground we went on, was, that one witness having proved the signature, and it not appearing that Pendergast, the other witness, was dead or out of the power of the court, we would not, as in case of his death or being out of the jurisdiction of the court, admit proof of his handwriting; and we reversed the judgment, and sent the cause back, that his testimony, if to be had, might be adduced. What was said by the judge who reported the opinion of the court, of the case of Burwell v. Corbin, was certainly not relied on, as making any part of the opinion of the pourt in the case, as it was unnecessary to the judgment pronounced.

I shall not repeat the evidence in the case now before us. I am inclined to think that it is insufficient to establish the will, and, therefore, that the sentence ought to be reversed.

TUCKER, P.

The county and circuit courts having coincided, in this case, in giving credit to the witnesses in support of the will, though contradicted by a witness against it, we are bound, by reason and authority, to follow their judgment in this regard.

Taking then for true, as I shall do, the testimony of Pasley and Hendrick, I cannot hesitate in affirming the sentence. The former explicitly states, that he wrote the will, and subscribed it as a witness, at the request and in the presence of the testator. It was objected, indeed, that it is not proved that it was dictated by, or read over to, the testator. But if, as the witness says, it was written by the request and in the presence Of the testator, we might fairly presume, that the testator did dictate the will which was written. But the proof of that fact has never been deemed necessary, where the testator has duly executed the will by signing and acknowledgment. *Innumerable wills, written by third persons and signed by testators, are attested without any evidence whatever of the circumstances under which they were drawn. The recognition of them by execution, is sufficient. It can never be fairly presumed, that a testator performs so solemn an act, without having dictated or understood it. Where, indeed, in the case of personal property, the will is not executed, it must be shewn, that it was written as dictated by the testator, or was approved after having been read. In this case, if the execution be regular, according to the statute, we must take it, that the testator was aware of the contents of the paper, befere he executed it; and the rather as it bears date so many years before his death ; as his fears of having pretermitted a daughter evinces a general knowledge of its contents; and as the witnesses against the will, if they are to be believed, themselves establish the fact of his having spoken of the will he had made with disapprobation, which could not well have been if he was ignorant of its contents.

The execution of the will seems to me to have been sufficient. Pasley proves the signing it by himself at the request of the testator, and attesting it in his presence. Here, then, is one complete witness to the will. Hendrick also proves, that the testator acknowledged the will in his presence, and he attested it accordingly. It is objected, that this acknowledgment is not sufficient, according to the statute, and the authority of Burwell v. Corbin. That case is not exactly in point; and though I shall certainly not disregard its authority where it is so, yet I am sustained by the case of Smith v. Jones, in saying that it affords no binding precedent in this case. ■ The case of Burwell v. Corbin was decided on a special verdict rendered upon an issue dev-isavit vel non. This case is before a court of probat. In that, the court was, perhaps, tied down to the facts as found; in this, it discharges the functions, not only of judges, but of jurors; having the power to infer a fact from the evidence *before it. In this case, therefore, I think myself entitled to infer, that when the testator acknowledged the will produced to Hendrick, as his will, he did acknowledge thereby the signature also. Eor Hendrick says the paper produced at the trial was that which was acknowledged, and we must therefore presume, it was signed as we see it, in the absence of proof to the contrary. Although, therefore, I do not contest the necessity of two witnesses to the recognition of the signature, since the case of Burwell v. Corbin demands them, yet I think that recognition may fairly be inferred here.

If these views are right, then the will was duly executed in its original form, to pass real estate. What then was the effect of the alteration?

1. What was the alteration? It was to provide, for a daughter, and uoon the face of the will not a particle of real property is given to a daughter. We may, therefore, fairly infer, that no part of the will devising real estate was then inserted; and, indeed, that no such part was erased, though even this would not have affected the residue. The will, then, is unimpaired as a will of realty.

2. How as to the personalty? The alteration having been made, and reduced to writing, in the testator’s presence, and by his direction, I think the reasons very strong for sustaining it without Hendrick’s testimony. But it is clear, that the alteration and his attestation were made about the same time. To suppose that the alteration was first made, will account for the desire to have a new witness to the will, seven years after it was first executed. To suppose the contrary, would leave that matter very obscure. If the alteration was first made, and then the will was acknowledged before Hendrick, there can be no doubt it is good as to the personalty in toto.

I am, therefore, of opinion, that the sentence should be affirmed: to which opinion I incline more readily, as the parties may, (if they please to pursue this matter further) prosecute their objections to the will, by bill in equity, and *have its validity determined by an issue Hevisa-vit vel non; whereas if we, as a court of probat, decide against the will, the decision may, perhaps, be conclusive on the rights of the parties.

Sentence affirmed.  