
    James W. Evans vs. John Evans et al.
    Under the statute of this state (How. & Hutch. 385,) which provides that there shall be three or more witnesses to a will when real estate is devised, and two when personal, (unless the will be wholly in the handwriting of the testator, when no witness is required,) a will cannot be admitted to probate, unless all the subscribing witnesses, alive and within the control of the process of the court, are produced to testify.
    
      On appeal from the probate court of Ponola county; Hon. J. T. M. Burbridge, judge.
    James W. Evans filed his petition in the probate court, to set aside the probate of the will of his father, John Evans, deceased, made at a former term of the court, on the ground of the insanity of the testator; and also on the further ground that the will devising real and personal estate, though attested by three witnesses, had been admitted to probate on the proof of but one, though the others were living, and within the jurisdiction of the court. The heirs of John Evans and his widow were made defendants to the petition. They answered, denying the insanity of the testator, but admitting the mode of probate of the will.
    The court below, upon the hearing of the petition, answer and proofs, the latter taken on the point of insanity, dismissed the petition, and the petitioner appealed.
    
      William and William G. Thompson, for appellant.
    
      D. C. Glenn, for appellees,
    cited 2 J. J. Marsh. 511; 2 A. K. Marsh. 467; Litt. Sel. Cas. 503; 1 B. Mon. 57; 4 Cow. 483; 2 Nott & McCord, 588; 19 Johns. 386 ; 1 Peters, 508; 2 Har. & J. 86; 7 Halst. 70; 1 Green’s Ch. R. 8 ; Pow. Dev. 708, 709; 5 Monr. 199; Black. R. 365; Gibb’s Rep. in Eq. 364; 1 Con. R. (So. Car.) 336; 1 Green’s Ch. 220; 3 Phil. Ev. (Cow. & Hill’s notes,) 1349-1351.
   Mr. Justice ThacheR

delivered the opinion of the court.

The sole question presented by the appellant’s counsel in this case is resolved into the inquiry whether a will can be admitted to probate upon the testimony of but one of the attesting witnesses to such will.

We are inclined to hold that no will can be proved, unless all the subscribing witnesses, alive and within the control of the process of the court, are produced to testify. In Chase et al. v. Lincoln, 3 Mass. 236, the court observed that the legislature, in requiring three subscribing witnesses to a will, did not contemplate the mere formality of signing their names. An idiot might do this. These witnesses are placed around the testator to ascertain and judge of his capacity, and the heir has a right to insist on the testimony of all the.three witnesses to be given to the jury.” In Sears v. Dillingham, 12 Mass. 358, it was contended that no will can be proved unless all the witnesses are produced to testify. The court said: This, as a general rule, is undoubtedly well settled both here and in England.”

The decree must he reversed, and the cause remanded for such further proceedings as may be desired.  