
    
      Mary Sampson vs. White, Adm’r of Bradley.
    Where the witnesses to a will are dead, their hand writings may be' proved to, establish the, will.
    TniS was án appeal from the ordinary, tried October Term, 1820.
    It appeared by the report of the ordihary, that letters of administration had been granted to John White, on the estate of Henry Bradley, on the 27th day of September, 1819. On the 10th of November following, a paper, purporting to be the last will and testament of Henry Bradley, was offered for probate. That paper, to use,the words of the ordinary, “ was proved in the usual form by Jonathan Wright, one of the subscribing witnesses.” The ordinary declined however to,admit the will to probate until the letters of administration were revoked. A rule for that purpose was then issued against the administrator ; lie came forward and required the will to be proved in so-lemh form ; but before that question could be heard, Jonathan Wright, one of the- subscribing witnesses, died. — > John Locklier, the other subscribing witness, was a coloured • man, and therefore his testimony was rejected. William Villepontóüx was then called ; he was not a subscribing witness, but “ he swore that he wrote the will at the request of the deceased; read it to him distinctly ; be said it was his will$ he could not write himself, and requested witness to put his name to it: And Jonathan Wright and John Locklier put their names to it as.witnesses. All the parties were together, and the business was all done at one time. He also proved the sanity of the testator, &c.
    The ordinary, in giving his opinion, among other things,, says, “ this will has received proof in the common form by the testimony of Jonathan Wright, one of the subscribing witnesses to the same.” Again, he says, “ Jonathan Wright is since dead, and his hand writing can only be pro-, ved; the party objecting, never having had an opportunity of examining him.” He then concludes., “ the will must therefore be dismissed, as by the authority from % Roberts on Wills, 171, where it is laid down, that when a. will is tp be established by the probation of solemn kind above alluded to, the civil law rule of establishing all proof upon the testimony of two witnesses, is followed in our ecclesiastical Court. John Locklier’s testimony being in the opinion of the ordinary inadmissible, and the Whites having had no opportunity to examine Jonathan Wright, the testament not being in the hand writing of the testator, nor signed by him, ought not, under the circumstances to be sustained.”
    An appeal was made from this decree of the ordinary, to the circuit court; and the presiding Judge in the Court below confirmed the decree. -•
    'This was a motion to reverse that decision, on the ground that the decree of the ordinary, as also the decision of the. Judge in the Court below, were contrary to law and evidence.
   Mr. Justice Nott

delivered the opinion of the Court, The ordinary lays down as the basis of his decision in this case, that the civil law rule which requires the attestation of two witnesses to establish a will of personal estate ought to prevail in his Court. He then seems to think that proof of the hand writing of Jonathan Wright would not be a fulfilment of that requisite of the law; because it . afforded the opposite party no opportunity of a cross-examination and that the probate of the will, in common form, ought to be of no avail for the same reason.

Whether it has ever been decided in this State, that the civil law rule, with regard to the admission of testaments to probate, ought or ought not to be adopted in our Courts of Ordinary, I do not know. Neither do I know what rule the ordinaries themselves have observed in that respect ; and it is not necessary to decide the question in this case. The rule which requires two witnesses, requires nothing more than that their attestation should be established in the same manner as that of one witness, where one only is required at common law. Thus for instance, tbs obligor oí a bond is entitled to the cross-examination of the subscribing witness. Yet, if he be dead, proof of his hand-writing is sufficient. So on an issue of dev vs amt vel non, if one, dr even all the subscribing witnesses were dead, proof of their hand writing would be sufficient. It would operate much more injuriously that one party should be deprived of the positive testimony of a witness, than that'the other should lose' the benefit of a cross-examina' tion. If, therefore, Jonathan Wright had' never been sworn before the ordinary, proof of his hand writing, with the testimony óf Villepontoitx, would fully have satisfied the law. But it is contended that the hand writing of Wright ought to have been proved by two witnesses; lei that be admitted in cases where proof of the hand-writing alone is relied oh, still this is a stronger case. Here, Wright himself had sworn to his own hand writing, and to the execution of die will by the intestate. The ordinary then had still higher evidence than proof of the hand writing would afford. He had the positive' oath of the witness, instead of proof of his hand-writing. The ordinary undoubtedly had a right to reject the testimony of Locklie; upon inspection. Colour' is in many cases an uncertain test; but it is sufficient to authorize the Court to throw the burthen of the proof upon the other side. '

The new trial must be granted.

Justices Colcock, Gantt, and Huger, concurred.  