
    Ferdinand Hopkins against Allan De Graffenreid.
    
      Pinckney District,
    
    1798,
    Where two witnesses to a are dead, and the third out of the state, proof of their hand-writings by any one credible witness, with the proof of testator’s hand-writing, is sufficient proof to establish the will. So proof of the hand-writings of the witnesses to a bargain and sale of lands, who are dead, or out of the state, with the proof of the hand-writing-of one of the grantors, where the other grantor or party to such bargain and sale is not accustomed to write her name, or to transact busi-under liar “ream-stanceSj to be submitted to a jury, as presumptive evidence that sucli grantor had executed the deed also. .Nonsuit set aside for refusing to let a cause go to the jury, for want of the proof of the hand-writing of one of the grantors, under the above circumstances»
    TRESPASS to try title to lands.
    In support of the plaintiff’s title, a grant was first produced to James Moore, for 350 acres of land, on Sandy river, dated 4ih November, 1763. Two surveyors, to wit, Moses Hill and Joseph Gaskms, were then calLd to prove the identity of the land, and that it was in the possession of the defendant, and that their resurvey corresponded with the original plat annexed to the grant.
    'I he last will and testament of James Moore, the original grantee, was next produced, and as two of the witnesses were dead, and the other out of the state, a witness, John P,ait, was called to prove all their hand-writings.
    Mr. Nott, of counsel for defendant,
    here objected to the swearing oí' this witness, to prove the hand-writings of all the witnesses to the will, insisting that there ought to be a separate and distinct witness to prove the signature of each witness to the will, otherwise it would not come up to the requisites of the statute of frauds. But this objection was overruled without argument, by Bay, J. who presided on the trial.
    Mr. Pratt then proved the hand-writings of each of the three-witness! s to the will; that two of them were dead, and the other resided in Georgia, namely, Geo. Nunn.
    
    The deposition of Geo. Nunn, taken on interrogatories, *■ 07 was next produced, in which he proved the execution of the will by the testator, and the attestation of it by all the witnesses, and that the testator was of sound mind and memory when it was executed.
    The will was then read; it bore date the 15th January, 1779. In this will the testator gave his wife Dorothy a life estate in the land in dispute, and the reversion in fee to his son Thomas Moore.
    
    The next link in the chain of titles produced, was a bargain and sale from Thomas Moore the son, and Dorothy the widow of James Moore, the testator, of the land in dispute, to David Hopkins, the father of the plaintiff in this action. The witnesses to this deed, it was stated, were dead or out of the state ; but in order to supply the defect of this testimony, several witnesses were called. Hugh Thomas proved the hand-writing of one of the witnesses to the deed, and that he was dead. William Jen kins proved the hand-writing of the other witness to the deed, and that he was out of the state. Another witness proved the hand-writing of Thomas Moore. The last and only remaining part of the proof of this bargain and sale to be established, was the hand-writing of old Dorothy Moore, the widow, who had the life estate in the land. Two witnesses were called for that purpose, Anderson Thomas and John Embre, (the latter of whom prevaricated exceedingly,) but neither of them did, or would prove the hand-writing of Dorothy Moore the widow. Here Mr. Nott, for defendant, called for a nonsuit, which was opposed by Mr. Smith, counsel for plaintiff, who argued that this case, under all its circumstances, should be permitted to go to the jury, in order to presume from the whole of the case, the execution of the deed from Dorothy Moore, who had the life estate.
    Bay, J. observed, that in this case, a very clear life estate was brought down from the original grantee to Dorothy Moore, the widow ; and, however clear and regular the evidence was on every other part of this case, and he was free to confess it was exceedingly clear on all the other points, yet there was not a tittle of testimony to shew that she had ever parted with her right; there was therefore a total defect of evidence as to the tranfer of her estate. To suffer a case therefore to go to the jury, when there was nothing to support the plaintiff’s right, would, in his opinion, 
      be a nugatory act. The plaintiff by his own shewing, had traced the estate down to the -widow, but had offered nothing , to shew she had ever parted with her interest in it to the plaintiff, or to any other under whom he claimed.
    The plaintiff was accordingly nonsuited, agreeably to Mr. Mott's motion.
    This case was afterwards taken up to the court of appeals at Columbia ; where a motion was made to set aside this nonsuit, and to have the cause reinstated on the docket in Pinckney district.
    Mr. Smith, in support of this motion,
    contended, that there were certain grades or degrees of evidence known in our law, which under different circumstances were all admissible in our courts of justice. That the first and most important rule of evidence was, that the highest evidence the nature of the thing is capable of, ought always to be given.
    The nest rule was, where the highest cannot be procured, then the next best evidence should be offered that can be got. And this rule he said, was divisible again from violent presumptions which are next to certainty, down to reasonable presumptions arising out of the peculiar circumstances of the case, and that in all cases of this latter kind the juries were the competent judges, and not the court. Now to test the case under consideration by these principles, he said, there were two witnesses to .the bargain and sale offered in evidence from Thomas Moore the son, and Dorothy, the widow of James Moore, to David Hopkins, under whom the plaintiff claimed. That one of these witnesses was dead, and the other out of the state, so that his attendance could not be procured, nor could any process compel him to attend and give evidence, but both their hand-writings had been proved ; also the hand-writing of Thomas Moore the son, to whom the fee of the land had been given, after his mother’s death by the testator’s will. So far, he said, every part of the testimony given was clearly within the well known rules of law. The only part wanting was the proof of the hand-writing of old Mrs. Moore, the other party to this deed. This old lady, he said, was far advanced in life, and very infirm ; that she had always lived in a remote part of the country, and probably had not signed her name for fifty years before the deed was made. The greatest part of her life she passed under the direction of her husband, and after his death, her son transacted business 3pr her, so that it is not at all improbable, that she never signed her name from the time she left school in her infancy, till she was called upon to sign this deed. No wonder, therefore, that no witness could be found to prove her hand-writing. Under these circumstances, therefore, a greater latitude ought to have been allowed, than in common or ordinary occasions. The rule of law ought not to have been too rigorously laid down; but it ought have been submitted to the jury, to presume from the whole circumstances of this case, and to determine whether she had signed this deed or not. It was well known, he said, that presumptions arising from.circumstances, was a species of evidence often resorted to, and admitted in our courts j and proof of such circumstances, which could not have 'existed, unless a particular fact had pre-existed.,' to give rise to them, had been admitted as presumptive evidence of such fact. Was it to be presumed, that two discreet disinterested men, would have signed their names, and attested the execution of a deed, unless such deed had really existed ? The thing is not supposable. The son also joining in this deed, and conveying away the fee of the land, is another circumstance to prove, that it is highly probable the mother must have joined her son in conveying away her life estate, which she could not long enjoy. All these were circumstances very proper for the consideration of the jury, and should have been submitted to them by the district court instead of directing a nonsuit.
    See case of Brown and Frost, ante.
    
    
      Mr. Mott, against the motion,
    said he had taken two grounds on the trial, either of which he presumed would entitie his. client to a nonsuit. The first respected the will, to which there were three subscribing witnesses ; two were dead, and the third was out of the state. To come up to the requisites of the statute of frauds, the hand-writing of each witness should have been proved by a separate witness ; otherwise, one witness might substantiate a will, which required three to pass a freehold. The second was the objection on account of Mrs. Moore’s hand-writing not being proved. On this second ground he succeeded, though he conceived he was entitled to it on the first. That the nonsuit was properly ordered on the second ground, by the circuit court, as the hand-writing of Dorothy Moore had not been proved. No matter how clear all the other parts of the testimony was ; this important link in the chain of plaintiff’s title, was wanting. The rule of law, in cases where witnesses to a will or deed were dead or out of the state, was first to prove the hand-writing of the witnesses, then the hand-writing of the party to the will or deed. 3 Burr. 1247. this was a case of a will. Without this last and essential part of the proof, all the rest was unavailing. The same doctrine is laid down in Doug. 89, 90. There it is said, if you cannot procure the subscribing witness to a bond, you must prove the obligor’s hand-writing to the bond. The presumptive evidence contended for, he said, was dangerous in the extreme, as it always held out a temptation to a jury, to put their own construction on slight or immaterial circumstances, whether they brought a case within the rules of law or not, which went to lessen the security men had for their rights in a court of justice. What zvas evidence and what was not, was one of the sacred duties of the court always to determine ; and should not be committed to the uncertain, fluctuating sentiments or opinions of uninformed jurymen.
   The judges were all of opinion, that the first objection taken on the trial was very properly overruled by the pre siding judge; that the proving the hand-writing of the three witnesses to a will by any one credible witness was sufficient, if they were dead or out of the state ; it did not by any means impugn or contravene the statute of frauds, Ypfúch required three witnesses to a will; on the contrary, it established the requisites of the statute. The statute did not require that there should be three witnesses to prove a will; (though if they are all alive it is best to produce them ;) any one witness to it, is sufficient to make such proof, if the others are dead or absent. There is therefore a great difference, between the making of a will on the part of a testator to devise lands, and-the proof of it afterwards, either before the ordinary or in a court of justice. In a court of justice, a will is considered only as a species of conveyance of lands, and therefore, it may be proved like any other deed. But as to the other objection, Burke and Grimke were of opinion, that too rigid a construction was given to the rule of law, as to the proof of Mrs. Moores hand-writing to the bargain and sale; and that the nonsuit ought not to have been ordered, but it should have been sent to the jury under all the circumstances of the case, to determine whether she had or had not executed the deed under consideration. They admitted the general rule of law as laid down in 3 Burr. 1247. and in Doug. 89, 90. that it is necessary-after you have proved the hand-writings of the witnesses, then to prove the hand-writing of the party to the bond or deed. But said, that this case formed a strong and marked exception to the general rule on this head. In the usual and ordinary transactions between men in the management of business with each other, the rule certainly ought to be adhered to. In a case, however, like the present, where the hand-writing of aa old infirm woman, who did not sign her name more than once probably in fifty years, it was next to an impossibility to find a man living, who could prove her hand-writing; therefore, the proof of all the so lemnities usually attending the execution, delivery and attestation of such a deed, as were not likely to happen, unless she had executed it, ought to have gone to a jury, as presumptive evidence for them, to determine whether she actually did sign, seal and deliver it, or not. The rule of law, therefore, quoted by the plaintiff’s counsel on the ar» gument, would well apply in this case ; namely, where the best evidence a thing is capable of cannot be procured, then the next best ought to be admitted; not as conclusive, but as presumptive evidence of the fact.

The nonsuit was therefore set aside, and the cause or» dered to be placed on the docket in Pinckney district, for trial again at the next court.

Present, Burke, Grimke and Bay.

N. B. Bay, J. afterwards, upon reconsidering this case, assented to the above decision.  