
    *AT A CIRCUIT COURT, AT LANCASTER,
    APRIL 1803.
    CORAM, YEATES AND SMITH, JUSTICES.
    Jacob Fox against Evan Evans.
    Issue to try the validity of a will. Two out of three subscribing witnesses prove it, and no evidence is given of the hand writing of the third who is absent out of the state. The declarations of such third person that the testatrix was insane shall not be received.
    This was a feigned issue from the register’s court, to try the validity of the last will of Mary Evans.
    The will was subscribed by three witnesses, and two of them duly proved its execution, and the sanity of the testatrix. The third witness, William Spence, had left the state and removed to Virginia.
    Mr. Hopkins for the defendant,
    offered a witness, to prove the declarations of this Spence, that the testatrix was absolutely childish when she made her will, her mental faculties being quite destroyed by old age. His signature adds validity to the instrument, and therefore what he has been heard to say shall be received in evidence to counteract his subscription. •
    Explained in 9 Pa. 157 where the court says that if the handwriting of the witness had been proved, evidence of his declarations to impeach him would have been received.
    Mr. Montgomery for the plaintiff,
    remarked, that wills had been established, though the subscribing witnesses had sworn to the insanity of the testator, and instanced Lowe v. Jolliffe, 1 Bl. Rep. 365. And Mr. Justice Yeates has observed, that a witness ought not to be admitted to give evidence against his own attestation of a will. 4 Burr. 2225.
   By the Court.

The evidence might be offered with a much better prospect of success, if this was a bill brought to establish a will of lands in England, where three witnesses are necessary by the statute of frauds and perjuries. There the rule is, that all the witnesses, if living, must be examined. 1 Vez. 177. 1 Wils. 216. Where one of the witnesses has gone beyond sea, a commission issues to examine him, and the same credit is not given to his hand writing as if dead. 3 Vez. 460. Where the witnesses are dead, their-hands may be proved. Bull. 265. In one case indeed, Clymer’s lessee v. Littler et al. hearsay evidence was received, that William Medlicott acknowledged he had forged the will in question. But that rested on the peculiar circumstances of the case, and the court said no general rule could be drawn from it. 1 Bl. Rep. 349. Medlicott being dead at the *trial, his hand writing to the will or instrument of 1745 was proved, which contained a disposition of the premises [*507 to his wife in fee. 3 Burr. 1247. If he had been living, he must have been called to prove the instrument, and the hearsay testimony wént not to give evidence of the forgery, but to impeach the credit of Medlicott, in the same manner as if he had been alive and examined; and besides, it came out on the cross examination of the adverse party. Ib. .1255.

But in the present instance no testimony has been offered respecting the hand writing of Spence. Nor did the same become necessary by o.ur laws, which provide that a will respecting lands may be proved by two witnesses. Indeed personalty alone is disposed of by this will. The will in question therefore derives no validity from the subscription of Spence ; and if he has made any declarations concerning the state of mind of' the testatrix, they cannot be admitted according to our united opinions. However we will agree to receive the evidence, subject to the terms of a new trial being awarded, in case of a verdict being found for the defendant, without cost, provided we shall adhere to our present opinion, with the benefit of appeal to either party in bank.

The defendant’s counsel then waved the testimony, and the jury after a full hearing established the will.  