
    GENERAL COURT, (E. S.)
    APRIL TERM, 1803.
    Collins et ux. Lessee vs. Nicols et ux.
    
    The declaration, of a deceased witnss to a will are not evidence of his signature.
    witnesses to tt will are dead, there must be proof of the testator’s hand writing, and °f the hand writing of all the witnesses; and where the witness* set their marks, there must be proof that suck marks were made by them.
    Ejectment for Tulin’s Jiddition Corrected, Tally’s , ^ _ _ _ . . ,v a - JUddition* and Hoe’s Lane* lyina’in Queen-Annc w ^ ty. General issue pleaded.
    
      i. At the trial of the cause, it was admitted that a certain Samuel Roc, under whom the lessors of the plaintiff claimed the, lands, lor which the suit was brought, as devisees, and the defendants as heir at law, died seized of the said lands; and the plaintiff, in support of the issue on his part, produced an instrument of writing, dated the 5th of May 17Y6, purporting to be the last will and testament of the said Samuel Roe, and to be signed and sealed by him, and to be witnessed by Joseph Bicklin, Thomas Wiggins and Thomas Roe, having- the name Thomas Roe signed to it, and marks, purporting to be the marks of Joseph Bicklin and Thomas Wiggins, affixed thereto; by which instrument the testator devised the lands mentioned in the declaration to Mele Roe, daughter- of his brother Thomas Roe, and one of the lessors. o.f the plaintiff, and appointed Samuel Roe his executor. The following indorsement was made by the deputy com., missary on the 16th of April 177?; “The probat of the within will objected to by Rett. Elliott, who mam, ed the daughter of the deceased.” The plaintiff also produced a renunciation by Satmiel Roe as executor, with a request that administration might be granted to Benjamin Elliott; and he gave in evidence that Thomas Roe, Joseph Bicklin and Thomas Wiggins were, at the time when the said instrument bears date, neighbours of the said Samuel Roe, the testator, and that one of them, Joseph Bicklin, lived on his land, and that all of them are now dead. That the name Thomas Roe, so signed to said instrument, was in the hand writing of the said Thomas, and that said instrument itself was in the hand writing of the late Reverend Samuel Roe, who is now dead, and who was the nephew of the said testator, and that he was a man of fair and respectable charaoter. He further gave in evidence, that the said Amelia, to whom the lands mentioned in the declaration are devised in the said instrument, lived with the testator at the time it bears date, and until his death,’which happened about a year after, and that she was not more than three or four years of age at his death. That the testator expressed for the said Amelia the same affection as is usual for parents to show to their children. That her mother was also at the same time living with him, anil was the wife of his brother. That the testator had only one daughter.; who was at the date of the said instrument married to Benjamin Elliott. That the testator died on or about the 1st of April 1777, and the said Elliott entered, in the month of April of the same year, a caveat against the probat of the sáiií will. The plaintiff further offered in evidence to the jury, that the name Samuel Hoc, signed to the said instrument of writing, was the hand writing of the said Samuel Roe, whose will the said instrument purports to be, and that the words Joseph Bicklin his mark, and Thomas Wiggins his mark, are in the hand writing of the.testator, or of his nephew. The plaintiff further offered evidence, that the said Bicklin and Wiggins were illiterate and incapable to write, and he produced witnesses to prove that the said Bicklin and Wiggins, before their death, and before arid after thé death of the.said Samuel Roe, the- testator, declared that they had witnessed a will made by the said Roe'; and he offered to prove,- by the wife of Bicklin, that about the time when the said instrument is dated, Bicklin was sent for by the testator, and that lie wentj> and on his return informed her that the said testator had executed his will, and that the said Wiggins¿ Thomas Roe, and himself, had witnessed it.
    Chase, Ch. J. The court are of opinion that thé plaintiff cannot give in evidence the declarations of the witnesses whose names are signed to the will, and they refuse to permit the same to be given in evidence; and the court do determine, that the plaintiff shall not read to the jury the contents of the instrument of writing purporting to be the will of Samuel Roe; and that upon the evidence which has been given to the jury by the plaintiff, it shall not be submitted to the jury whether the said Samuel Roe did execute the said will in the manner, as by the statute in such eases made and provided, required; The plaintiff excepted.
    
      The hand writing of a deceased witness to a will 3najr be proved, but the declarations of such witness that, he had signed the will, &c. are not legal evidence to prove Itis hand writing.
    Where all the witnesses to a will are dead, the hand writing of the tes. tator, and. of allthe witnesses, must he proved, before the will can he given in evidence; and where the witnes have put their marks, there must he proof that such marks are the marks of th® witnesses*
    2. The plaintiff then, to establish the said will, gave in evidence to the jury, that the sard Thomas Roe, Wiggins and Bicklin, were dead; and to prove the signature of the said Thomas Iloe, produced a witness, who swore that he was well acquainted with the hand writing of the said Thomas Roe, and had seen him write, and that the name “Thomas Roe” signed to the said instrument resembled the hand writing of the said Thomas Roe, and was as he believed his hand writing. He further offered to give evidence to the jury, that the said Thomas Roe in his lifetime declared, that he had signed his name as a witness to a will of Samuel Roe; and that after the death of the said Samuel Roe, he the said Thomas Roe saw the paper aforesaid now produced, and his said name thereto subscribed, and did declare that his name thereto subscribed was his hand writing, and that he had set his name thereto at the request of the testator.
    Chase, Ch. J. The court are of opinion that the plaintiff may prove the hand writing of Thomas Roe, one of the witnesses, whose liameis signed to the wili, but the declarations of the said Thomas Roe are not legal evidence to prove the hand writing of the witness, and they refuse to permit the same to be given in evidence to the jury.
    The court are also of opinion, that there must be proof of the hand writing of the testator, and of all the witnesses, before the will can be given in evidence; and where the witnesses have put their marks, there must be proof that such marks are the marks of the witnesses. The plaintiff excepted.
    
      Martin, (Attorney General,) Scott and Earle, for the-plaintiff.
    
      Wright and I. Bayly, for the defendants.
    The counsel in arguing the points before the court cited the case of Collins et ux. Lessee vs. Elliott f ante 1,J and the authorities there cited.
    Verdict and judgment for the Defendants, and the Plaintiff appealed to the Court of Appeals.
   The Court of Appeals, at June term 1808, (E. S.) affirmed the judgment of the General Court,  