
    Lewis against Lewis.
    
      Saturday, April 28.
    Theauthenby t°herenumber of witnesses, is matte;determination oEthe Court; the sanity of the testator, “¿“¿firaud belong to the jury. Where, therefore, the gj^tedthese questions, and submitted to the the question as to the due execution of the instrument, instructing them at the same time that it was necessary to prove the testator’s knowledge of the contents of the will by the same number of witnesses as were required to prove its execution, it was held to be error.
    Where the execution of a will, by a blind or illiterate man, is proved by two witnesses, one witness is sufficient to rebut the imputation, that a paper, of the contents of which he was ignorant, was imposed upon him. So, on the other hand, one witness is sufficient to set aside a will on the ground of fraud.
    In Error.
    A FEIGNED issue having been directed by the Register’s Court to the Court of Common Pleas of Chester county, to try the validity of an instrument of writing • , J , , , ~ , -r . , porting to be the last will and testament of Jacob Lewis, deceased, the trial took place on the 10th November, 1819, when the presiding Tudge delivered the following charge to the • »• i * r i i r 6 t ¶ • »rr % jury, which, at the request of the counsel for the plaintiff, he filed of record. As it contains a statement of all the material facts in the cause, it is inserted at length.
    Charge.—“ The question submitted to the decision of the jury is, whether the instrument of writing which has been read, bearing date the l'3th day of December, 1817, purportjng'to be the last will and testament of Jacob Lewis, decease(j is his last will and testament or not ?
    “The paper itself is proved to bear the mark of, and to have been executed by Jacob Lewis, deceased, in the presence of three subscribing witnesses, James Freame, Jacob Reel, and Abner Garrett, who have been examined before you. Mr. Garrett says, that on the day before the paper bears date, he called upon the deceased, at the request of the plaintiff, with whom the deceased lived, and when left alone with the deceased, he was informed by him that he wished to settle his affairs, and wished him to write his will. Mr. Garrett informed him it could not be done then, but if the deceased would let him know how he wished it done, he would take it down, but that he thought it could not be done so as to get it back there that night. The deceased then gave him particular instructions how he wished his will made, and Mr. Garrett made a memorandum in writing conformable to the instructions of the deceased, how he wished his will made. Mr. Garrett then told the deceased he was a poor writer, not used to writing wills, and if he had no objection he would take it to their schoolmaster. He told him to do so. fie accordingly took the memorandum to the schoolmaster, who is since dead, and he undertook to write it, so that he could have it in the morning. The next morning he got the instrument now in question from the schoolmaster, but not the memorandum, which he never saw since he left it with the schoolmaster, but that this instrument was written according to the memorandum. He went up with it to the deceased, found him in bed and very poorly. The deceased said he had a very poor night, and did not know whether he should have lived until morning, and asked if he had got the writing ? The witness said he had. Enoch Malin was sitting in the room. The deceased asked him to go out, and he went out. The witness then went to the bed side of the deceased, and asked him if he could read ? He said no, he could not see to read it; he wished the witness to read it, and he did so, a paragraph at a time, and asked him if that was right? The deceased said yes, and went on so till it was done. When the witness had finished reading it, the deceased said, “ it is just as I told you yesterday.” No one heard the instructions to write the will given* or heard it read after it was written, but Mr. Garrett. The other witnesses were then called in. Mr. Garrett asked them, if they would see the old man sign his name ? and gave the deceased a pen with ink in it. He said he did not think he could write his name so as to be read. He said he would try it, and went on, and asked if it could be read? Garrett said he did not know. The deceased then asked to make his mark. Garrett told him he supposed that mark was enough. Garrett then wrote his mark and name. The deceased then took hold of the paper and said he acknowledged it to be his last will and testament, and then the witnesses subscribed it. The paper was handed him and he laid it by his side on the bed. He was in great pain, and in a few minutes made use oí some very incoherent expressions, such as “ a singing school,” “ Isaac Wayne’s singing school.” He was unable to turn himself. Some of the witnesses say he took no notice of them when they came into the room ; most of them think he was in his senses. The paper was executed between nine and ten o’clock in the morning, and .he died about six o’clock in the afternoon. This is a general outline of the testimony.
    “ Two questions have been made by the counsel—
    “ 1st. Is the testator’s kno wledge of the contents of the instrument necessary to be proved by two witnesses, or is the the proof of that fact by one witness sufficient ?
    “2d, Was he of sound mind at the time of executing the paper in question ?
    “ By the laws of this State, the proof of two credible witnesses is necessary to establish a will. It is not necessary that it should be sealed, nor that the subscribing witnesses should prove the execution, nor that the proof should be made by those who subscribed as witnesses, nor that the will should be subscribed by witnesses. If the will is written by the testator himself, his hand-writing may be proved by two witnesses} or if the subscribing witnesses are dead, or out of the Court’s jurisdiction, their hand-writing may be proved. But in every case, the proof of two witnesses, or what is equal to two witnesses, is necessary to establish a will. And, therefore, proof by a notary, of a memorandum made according to instructions to draw a will by, or of its having been drawn according to such instructions, and signed by the testator, of itself would be sufficient, without proof of the signature, or some other circumstances by some other additional witness or evidence.
    
      
      “ The proof by two witnesses, or what is tantamount to two witnesses, being, in all cases, necessary to establish a will, what is the will in contemplation of law ? Is it the paper on which the instrument of writing is drawn, or the instrument of writing itself? The instrument of writing, the testamentary disposition, is the will. Does the law require two witnesses to the testamentary disposition f It certainly does, or what is equal thereto. There must be the direct or indirect proof of txvo witnesses, or what is equal thereto, that the testator xvas acquainted xvith the contents of the instrument. By direct, I mean positive proof that the will was read to him, or drawn by his instructions, or by himself; by indirect, I mean circumstantial proof, from which it may be inferred, that the testator was acquainted xvith the contents, such as the acknowledgment of the instrument, -the execution of it in the presence of witnesses, the declaration that it is his will, or the relation of the contents thereof in conversation ; in short, any fact or facts from which a knoxoledge of the contents isfairly deducible, in common cases, will be deemed sufficient proof. But that this proof, in all cases, is necessary, will appear from the case of the witnesses proving the execution of the paper, proving also that the testator was entirely ignorant of the contents of the,writing. Would such proof be sufficient to establish a will? Certainly not.
    “ The law, in requiring the proof of two witnesses, had the protection of weak, illiterate, and blind men, from fraud and imposition, as much in view as the prevention of the establishment of the wills of insane persons. In the case of a blind or illiterate man, one who is unable to read, before the will of such a person can be established, it must be satisfactorily proved to the jury, that the contents of the will were made known to him, or that he was acquainted .with them by having dictated the testamentary provisions of the will, or that he knew the contents thereof, and this must be proved by two witnesses, or what is equivalent to two witnesses. In this case, the jury have the positive oath of Mr. Garrett, that the instrument was read to, and approved by, the deceased. Are the declarations of the deceased, in the presence of the other witnesses, that he acknowledged the paper to be his last will and testament, equal to the proof of another witness, that the deceased was acquainted with its contents ? Can it be fairly inferred from this fact, in connection with the other circumstances of the case, that the testator was acquainted with the contents of the instrument? Of this the jury will judge, and decide for themselves, under the law as already laid down by the Court.
    “ If the jury shall be satisfied that they have the requisite proof, they will then inquire from the evidence, whether the testator, at the time of executing the instrument, was of sound mind and memory. The witnesses had little or no conversation with him; one of them could not hear what he said; another of them heard him make use of incoherent expressions, and some observed-that he took no notice of his neighbours as they went in; and it is doubtful whether he was not in the agony of death at the time.
    “It is not health of body that is required in making a will, but integrity and perfectness of mind and memory. Sane memory for making a will, is not, at all times, when the party can speak yes or no, or hath life in him, or when he can answer any thing with sense, but he ought to have judgment to discover, and be of perfect mind, otherwise it will be void. He may not be actually insane, yet the last ray of intellectual light may be too feeble to make a will. The jury will decide this point on the evidence they have heard.”
    Edwards, for the plaintiff in error,
    objected to that part of the charge which declared, that by the law oi Pennsylvania, it was necessary to prove by two witnesses, that the contents of the will were known to the testator. By the act of 1705, Purd. .Dig- 648, no proof of execution is required, and where the will is proved by two witnesses in the manner prescribed by the act, the presumption is, in the absence of proof to the contrary, that the testator was acquainted with the contents. If fraud be alleged, or that the testator was illiterate, it rests with those who raise such allegations to prove them. If the lav/ were as the presiding Judge laid it down, few wills would stand. It would be impertinent in a witness to ask the testator what are the contents of his will, or even to inquire of him whether he is acquainted with them. The Court, therefore, (for they are the proper tribunal to determine the question,) should have instructed the jury, that, in point of law, the will was legally executed. But the proof furnished by the plaintiff below, went beyond the requisitions of the law. There was positive proof, by one witness, that the contents of the instrument were made known to the tes* tator, which would have been sufficient to satisfy the jury, had they not been misled'by being told that the law required two witnesses to prove that fact. Havard v. Davis, 2 Binn. 422. Englés et al. v. Bruington, 4 Teates, 345. 2 Phill. Ev. 379. 1 Sm. S. 40, note.
    Tilghman, for the defendant in error.
    If the whole charge be taken together, and not by detached sentences, it will be found, on examination, not to contain the error imputed to it. The Court expressly left it to the jury to presume a knowledge of the contents of the paper from the testator’s ii putting his name to it, and from the execution of it in the presence of witnesses.” They no where declare it to be essential to the validity of a will, that it should be proved by two witnesses that the testator was aware of its contents. “ Any facts,” they say, “ from which the testator’s knowledge of the contents may be deduced, will be deemed sufficient*” If the testator is blind or illiterate, it is material that his knowledge of the contents of the paper he is about executing as his will, should appear. This was eminently called for in the case under consideration. Signature and attestation were sufficient to entitle the paper to go to the jury ; but as it was executed by an illiterate man, extremely ill, and in his last moments, the jury were to decide, after having the paper laid before them, whether or not he was acquainted with its contents. It was not a case of an ordinary kind, but one in which a paper of a suspicions character was set up, on which an issue was directed by the Register’s Court, and in which the sanity, capacity, and disposing mind of the testator came into question.
   The opinion of the Court was delivered by

Duncan, J.

Wills in writing must be proved by two witnesses. This instrument, purporting to be the last will and testament of Jacob Lewis, was proved by three subscribing witnesses; one of whom, and his character, was unimpeachcd, and his testimony unco'ntradicted, proved that the will was dictated by the testator, put in writing in form by his direction, read to hint paragraph by paragraph, and approved of by him, as being conformable entirely to his directions. This was the requisite proof. The execution was legally proved ; the instrument duly authenticated. The plaintiff made out in the first instance.his proof on the issue of devisavit vel non; the onus of disproving it; proving that a will, the contents of which were unknown to the testator, was imposed on him, and he by practice induced to sign a will containing dispositions of which he was ignorant, lay on the defendant ; for there was no evidence tending to she w that this was not the real testamentary disposition of the testator, unless the want of a sound mind when he signed the will, was made out in proof. The Court confounded the legality of the execution, with the question of sanity, the imputed fraud, with the authentication of the writing. The authentication of the instru-" ment by the.requisite number of persons, was a mere abstract question of law to be decided by the Court; the sanity, and all questions of fraud by the jury. 1 Sm. L. 40. But here the question of requisite proof was entirely submitted to them; and before they were to inquire into these facts, they were informed by the Court, they must be satisfied they had the requisite proof of the execution of the will; and taking the whole charge together, it is manifest that the Court was of opinion, that it was equally incumbent on a plaintiff to prove knowledge of the contents by the testator, by the same medium of affirmative testimony, and the same number of witnesses as the execution of the will. In this the Court erred. If further proof, were required than was given in this case, few wills could be proved. Of all instruments executed by men, a will is that of which the party is most desirous of keeping the contents secret. In dispositions which are to take effect in a man’s life-time, secrecy is seldom desired ; but few men make known their dispositions by will. Where a man does not draw his own will, the friend or scrivener whom he employs is the only depository, generally, of its contents. An inquiry by a subscribing witness of the contents of a writing, or of the grantor, if he had knowledge of what he was going to sign, would be considered as most impertinent curiosity; in the case of a will most offensive. It would be something like the separate examination of a feme covert, as to her knowledge of the content^ of a deed she was about to acknowledge. Formerly as the law stood, the interest of a witness was affected by his attestation from his presumed knowledge of the contents; but this forced presumption, contrary in most instances to the truth, no longer prevails; because a witness is only called to authenticate the instrument, and is not presumed to be, as in practice he is not, privy to the contents. Welford v. Bezely, 1 Ves. 6. Powell on Mort. 186. Under the statute of frauds, if a testator acknowledges the signature to be his hand-writing, it is sufficient, though the subscribing witnesses did not see the testator sign. 2 P. Wms. 253. 2 Ves.4t54<. Where a will is not signed by the testator, and is not of his own hand-writing, there must be proof by two witnesses that he knew the contents; but where a man signs any instrument, deed, or will, to which there are subscribing witnesses, proof by them is the primary proof of the execution, and if that can be had no other can be resorted to. There cannot be a doubt, but if this were an instrument by deed or other written engagement, that the mere signature of the party, though illiterate, or even blind, proved by the subscribing witnesses, would be deemed as sufficient execution, and the only thing to be proved would be, that the person was not imposed on. In this respect wills do not differ from other instruments, except in requiring two witnesses to authenticate them. In the present case, the fact was completely established by one witness, who took the instructions from the mouth of the testator, and read the will over after they were reduced to form, paragraph by paragraph to the testator, who said, “it is just as I told you yesterday.” This evidence would be sufficient, though but by one witness; the execution of the will being proved by two, one witness is sufficient to rebut the imputation of fraud. The possibility of practice on the testator by imposing on him a will, of the contents of which he was ignorant, might exist in the case of an illiterate or blind man, but it would be removed by the testimony of one witness as well as of one hundred, if he was believed, that the will was truly read to him. An argument of a most curious kind at one time produced a verdict against a will. One of the subscribing witnesses swore that an alteration was made without the testator’s knowledge. It was insisted on, that if the jury believed him, it was not the testator’s will, and if they did not believe him, he was not a credible witness, and therefore there were not three credible witnesses to the will; so that whether the witness was believed or disbelieved, stiff his evidence destroyed the will. But this mode of reasoning was considered most fallacious, and a mere trap to catch the jury. 1 Br. Civ. is1 Adm. Law, 285. If a will of land is lost or secreted, parol proof of its contents by one witness would be sufficient, the proof of the execution being made by the requisite number. So on the other hand, parol evidence may be admitted, and that by one witness, that one will was substituted in the room of another, in order to set it aside on the ground of fraud. The execution of a will might be made out by proof in the most formal manner; yet one witness might establish a fraud, that would overthrow all this; so one witness to rebut a fraud, might prevail against the proof by three or any other number, because proof of the existence or non-existence of the imputed fraud, in obtaining the will, depends not on the number qf the witnesses, but on. their credit. The Court here should have decided the question of law as to the legal execution of the will, and have instructed the j ury, that it had the requisite proof; was legally authenticated by the requisite number of witnesses; and if there was any evidence to impeach it on the ground of practice, or want of capacity in the testator at the time of the execution, have submitted these facts to the determination of the jury; whereas, they were instructed first to satisfy themselves of the requisite proof of the execution by the prescribed number of witnesses, including a knowledge of the contents by the testator, before they entered on the inquiry, as to the imputed fraud, or incapacity. In this the Court fell into error, and judgment is reversed, and a venire facias de novo awarded.

Judgment reversed, and-a venire facias de novo awarded.  