
    Richmond.
    Johnson v. Dunn.
    1850. January Term.
    
    
      A testamentary paper appears to be attested by two witnesses; but one of them is not a credible witness, and his attestation is not proved by the other attesting witness, or any other person. Held: The paper is not so proved as to be admitted to probat.
    At the April term for 1848, of the Circuit court of Buckingham, a paper purporting to be the will of Mildred Johnson, was propounded for probat by John H. Johnson, the nominated executor therein, when William J. Dunn appeared and opposed its admission to probat. The will bore date the 31st of March 1845, and after several small bequests, she gave the residue of her property to her son John H. Johnson, and appointed him her executor. The signatures to the papers were as follows :
    her
    
      Mildred + Johnson,
    
    mark
    Wife of Richard Johnson.
    
    Teste, William H. Wood.
    
    Teste, Henry Wade.
    
    
      On the hearing of the case, both the attesting witnesses were examined. The proofs left no doubt of the competency of Mrs. Johnson to make a will; and the witness Wade, proved that she acknowledged the paper as her will, and that he attested it in her presence and at her request. He stated further, that she made the mark in her name in his presence, and directly after he had signed his name ; and that the name of William H. Wood was signed to the paper when he attested it; but that Wood was not present on that occasion.
    
      Wood also stated that he attested the paper at the request of Mrs. Johnson, and in her presence. He also stated that after he had written his name, that he made the mark in her name, she holding the upper part of the pen. This Court was of opinion from the evidence in the cause, that this was not a credible witness; and neither Wade or any other witness examined in the trial of the case, proved his attestation.
    The Circuit court refused to admit the paper to pro-bat, and Johnson excepted; and having spread the evidence upon the record, applied to a Judge of this Court for an appeal, which was allowed.
    
      Garland, for the appellant, and Patton, for the appellee, submitted the case.
   Baldwin, J.

delivered the opinion of the Court.

The proofs are satisfactory to shew that the alleged testatrix was, at the date of the writing propounded as her last will and testament, of sound disposing mind and memory, and the evidence is not sufficient to establish that the same was obtained from her by duress or undue influence, though it is such as to suggest a rigid scrutiny in regard to the factum of the instrument.

Our statutes concerning wills, whether of realty or personalty, require that they shall be signed by the testator, or by some other person in his presence, and by his direction ; and moreover, if not wholly written by himself, that they shall be attested by two or more witnesses, subscribing their names in his presence. In a Court of probat, it is necessary that all the attesting witnesses, or the number required by law, should be examined, if to be had; but it is not indispensable that the material facts should be proved by more than one of the subscribing witnesses. Any one of the subscribing witnesses may prove the due execution of the instrument, and its due attestation by himself and the others, and if his testimony be satisfactory, it is sufficient. Pollock & wife v. Glassell, 2 Gratt. 439, and the authorities there cited.

In the present case, the witness Wade proves the due execution of the testamentary paper in question, in his presence, and its due attestation by himself; and his credibility is in nowise impeached. But he does not prove that the will was executed or acknowledged by the testatrix in the presence of Wood, whose name also appears upon the paper as an attesting witness; or that the latter did in fact attest the instrument. In regard to these essentials, we have to resort to the testimony of Wood, which is discredited by the fact proved by the evidence of Wade and others, that Wood was not present when the paper was executed by the testatrix in the presence of Wade, and attested by the latter. Wood's name was on the paper at the time of Wade's attestation of it, and if, as Wood swears, it was executed by the testatrix in his, Wood’s, presence, there must have been two different executions of the instrument at different times, which is in conflict with the other evidence, and even that of Wood himself.

The credibility of Wood’s testimony has no support from the judgment of the Court below, it not appearing therefrom that he was credited in that forum; nor by evidence of his general character, nor of the relations in which he stood to the parties interested in this controversy. His testimony must, therefore, be rejected as unworthy of credit; and it follows that the factum of the will has not been establised by sufficient legal evidence ; and therefore that the judgment of the Circuit court ought to be affirmed. .

Judgment affirmed.  