
    Richmond.
    Jesse & als. v. Parker’s adm’rs & als.
    1849. April Term.
    
    1. Upon an issue devisavit vel non, the verdict of the jury in favour of the will, approved by the Court before which the issue is tried, concludes all mere questions of fact depending upon the credit to he given to the witnesses. And therefore in such case in an appellate court, it must be taken that all the requirements of the statute in order to establish a will, were satisfactorily proved: And the identity of the paper is one of the facts settled by the verdict.
    
      2. It is settled law that a subscribing witness may attest a will by making his mark, his name being written by another in his presence and at his request.
    3. The validity of such an attestation depends upon the signing the name of the witness by his authority and in his presence; and not upon the fact of his making a mark, or doing some manual act in connexion with the signature.
    4. Although there must be satisfactory proof that every statutory provision has been complied with, in order to establish a will, the law does not prescribe the mode of proof, nor that the will shall be proved as well as attested, by a specified number of witnesses.
    This was a hill filed by William Jesse and others, some of the heirs and next of kin of Jeremy Parker deceased, to set aside a paper which had been admitted to probat in the County court of Cumberland, as his will. The Circuit court directed an issue of devisavit vel non to be tried at its own bar. On the trial it appeared that some two or three hours before the testator’s death, his attending physician, Dr. Z. Talley, was requested to write his will, and prepared the paper in question. The paper being prepared, the name of the testator was written by Dr. Talley, and the names of himself and of Jane Sanderson and Sally C. Southall were signed by him as attesting witnesses. The questions contested before the jury were the competency of the testator to make a will; and the proper execution and attestation of the paper. Dr. Talley says: “I wrote the will in 
      Mr. Parker’s own words ; he was as much in his senses as he ever was. Mr. Parker asked me to write his will. I reflected whether he was capable of making a will; I was perfectly satisfied he was capable; I then wrote his will as he directed, read it to him and asked him if it was such a will as he desired, and he answered yes. He was raised up to sign the will. I signed it for him at his request or consent. I then stated it was essential there should be three witnesses. I signed my name as a witness, and by the consent or request of Miss Jane Sanderson and Miss Sally C. Southall, I signed their names as witnesses. He was elevated in the bed for the purpose of signing the will, and said, I reckon you (Dr. Talley) can sign my name, and it will answer just as well. When raised up to sign the will he appeared to be very feeble, and said, you can sign my name and it will answer just as well. I laid him down and signed the will according to his request.” Witness signed testator’s name in the presence of the testator and the other subscribing witnesses. Witness told him it was necessary to have three attesting witnesses; testator said nothing, but nodded his head in assent. Witness did not tell him who the witnesses should be; told him here were witnesses enough. The other two subscribing witnesses were then in the room before him, near his bed. The names of the other subscribing witnesses were signed by witness (Talley) in the presence of the testator. One or both of the other subscribing witnesses said there were some gentlemen coming and they could be witnesses; that they did not want to go to Court. Witness told them it made no difference, they might never have to go to Court. They then said, put my name down, I write badly, or something to that effect. Witness thought the testator seemed to understand and observe every thing that was going on. Witness thought that in signing the name of the testator and of the other witnesses, and his own name, and all that he did, he did hy the request and with the consent and approbation of the testator.
    On cross-examination Dr. Talley said that he did not remember whether or not the testator called on him and the other subscribing witnesses to sign their names to the will. That after the testator’s name was signed to the paper, witness shewed it to him and told him it was signed, and that it required three witnesses, and the testator nodded assent, without saying anything. That after he nodded assent witness did not think that anything passed between him and the witness or the other subscribing witnesses about their signing the will; and that immediately thereafter witness signed his name and the names of the other subscribing witnesses.
    
      Sally C. Brown, formerly Sally C. Southall, another subscribing witness, said: she did not sign her name to the paper. The reason she did not was that she thought it would answer as well for Dr. Talley to write it; though she could have written her name herself. After stating where and how the paper was written by Dr. Talley, she said, that as soon as the paper was written, Dr. Talley got up and said to them, you all come in here, and she went into the testator’s room, and Dr. Talley standing in the floor near the bed on which the testator was lying, read it, and that nothing passed that she heard between Dr. Talley and the testator before reading the paper; and after Dr. Talley had read the paper, then he asked Mr. Parker if that was his will, or if he acknowledged that to be his will, (she is not certain of the words, but one or the other,) and she understood Mr. Parker to say yes. That she cannot be certain that Dr. Talley read the paper loud enough to be heard by Mr. Parker; and that she cannot be certain as to the distance from Dr. Talley to the bed. That Dr. Talley then commenced writing, but before he did, something passed between her and Dr. Talley about her name, she cannot be certain what. She could not say what name he wrote first, and she did not see, and very little was said; and, that Dr. Talley, after he had finished writing, folded up the paper and put it in his pocket. Being asked if Dr. Talley put her name to the paper by her consent and approbation, she said, that she could not remember particularly what passed; she let Dr. Talley put her name there without reflection.; she knew he was going to put it there, and was thinking about it no way, and was willing for him to put it there. She further said, something occurred between Dr. Talley and herself as' to whether she or Dr. Talley should sign her name, she cannot remember the words particularly. The witness expressed strong doubts about the capacity of the testator to make a will, founding her doubt upon his consciousness that he would not recover, and his extreme weakness. And she stated that she had applied mustard plasters to his wrists before the will was written, and she could not discern any pulse.
    The witness was cross-examined as to what passed when the will was executed, and she remembered nothing else that was said by the testator after his reply of yes to the enquiry by Dr. Talley whether the paper was his will, except that she was inclined to think, though she would not swear, that he requested Dr. Talley to sign his name to the paper. Upon the identity of the paper she said there was nothing about it by which she could identify it, or say that it was or was not the paper executed at the time ; but she stated the bequests of the paper executed, which were the same as in that admitted to probat; and on its being read to her, she said, I believe it to be the same paper Dr. Talley read to Mr. Parker; and I do not believe Dr. Talley would present another; and having just heard the will read, things are brought back fresh to my recollection.
    
      The other subscribing witness, Jane Sanderson, after some previous statements, said: we went near to the bed and Dr. Talley read the will, and asked the testator if he acknowledged it, and testator made some reply that was so indistinct she was not able to say what it ' was; and there was no other question asked that she recollected. She does not know whether or not testator’s name was put to the paper at the time, or by what authority Dr. Talley put her name to it. Dr. Talley turned to Miss Southall, and asked her what was her name, and no more passed. Witness saw Dr. Talley put her name to the paper, but he neither asked her to write her name, nor did she authorize him to do it, and she does not consider herself a witness to the will. She considered the testator almost dead at the time the will was read to him by Dr. Talley ; and she is not able to say whether he was or was not able to understand the paper, or knew what he was doing.
    
      Dr. Talley being recalled said, he called on Miss Jane Sanderson by name, to witness the will, and he understood her to say either she wrote badly or could not write, and that he could sign her name ; and his reason for putting her name there was, he had her consent to do it. But he told the jury that although his evidence and that of Miss Sanderson conflicted, he believed her to be as truthful a woman as any in the State.
    There was other evidence before the jury, but it did not materially aifect the questions in the cause.
    When all the testimony had been introduced, the contestants of the will moved the Court to instruct the jury :
    1st. That every solemnity necessary to constitute the paper in controversy, the will of Jeremy Parker deceased, must be proved to the satisfaction of the jury by at least two of the witnesses whose names are subscribed thereto; and if the jury shall not be satisfied from the evidence of at least two of said witnesses, that every solemnity necessary to constitute said paper the will of said Jeremy Parker deceased, was observed, then the jury ought to find that said paper is not the will of said Jeremy Parker deceased.
    2d. That unless the jury shall believe from the evidence of at least two of said witnesses, that they, said witnesses, attested said paper, and subscribed their names as witnesses thereto, in the presence of said Jeremy Parker deceased, then the jury ought to find that said paper is not the will of said Jeremy Parker deceased.
    3d. That if the jury shall believe from the evidence in the cause, that said paper was wholly written by Dr. Z. Talley, and that the name of the said Jeremy Parker was signed thereto, and the names of the other witnesses were also subscribed by said Talley, then said will was not executed and published by said Parker according to the act of the General Assembly in such cases made and provided.
    The Court overruled the motion, and refused to give all or either of said instructions; and the contestants excepted. And then the jury found that the paper in the proceedings mentioned was the true last will and testament of the testator Jeremy Parker deceased. Whereupon the contestants moved the Court to set aside the verdict and award a new trial of the issue, but the Court overruled the motion, and they again excepted, and the Court certified all the evidence as the facts proved.
    The cause came on to be finally heard on the papers formerly read and the verdict of the jury upon the issue of devisavit vel non, and the Court being satisfied with the verdict supporting the will, made a decree that the said will be established and confirmed; and that the bill be dismissed with costs. And thereupon the plaintiffs applied to this Court for an appeal, which was allowed.
    
      
      Robinson, for the appellants.
    
      Patton, for the appellees.
   Allen, J.

delivered the opinion of the Court.

The Court is of opinion that as the jury were the proper judges of the weight and credit due to the testimony of the witnesses, the verdict in favour of the will, sanctioned by the opinion of the Court before which a trial of the issue was had, has concluded all mere questions of fact depending upon the credit to be given to the witnesses. The Court is therefore of opinion, that upon this record it must be taken that all the requirements of the statute in order to establish a will were satisfactorily proved.

The Court is further of opinion, that the question whether the paper offered for probat, was identified as the same paper which had been attested as the last will of the deceased was one of those questions of fact determined by the finding of the jury.

The Court is further of opinion, that as in the construction of the statute of 29 Car. 2, it has been settled that a subscribing witness may attest a will by making his mark, his name being written by another in his presence and at his request, Harrison v. Harrison, 8 Ves. R. 185; Addy v. Grix, Id. 504; Harrison v. Elvin, 43 Eng. C. L. R. 658, the validity of such an attestation depends upon the signing of the name of the witness by his authority and in his presence, and not upon the fact of his making a mark or doing some manual act in connexion with the signature. The making of a mark would furnish little, if any, means of verifying the signature; and the doing some manual act in connexion with the signature, would furnish no additional safeguard appearing on the body of the instrument, against those frauds which it was the object of the statute to prevent.

The Court is further of opinion, that although there must he satisfactory proof that every statutory provision has been complied with in order to establish a will, the law does not prescribe the mode of proof; nor that the will shall be proved, as well as attested, by a specified number of witnesses. If such proof were to be required from each subscribing witness the validity of wills would be made to 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 complied with. The Court is therefore of opinion, that there was no error in the refusal to give the instructions to the jury asked for by the appellants upon the trial of the issue.

Decree affirmed.  