
    Elizabeth Welch, et al., vs. Henry Welch.
    In tbe probate of a will in solomn form, it is not necessary that each attesting witness should prove tbe signature of testator, or Ms acknowledgment of bis signature — it is sufficient if it be proved by the other attesting witnesses.
    It is a matter of discretion with the Court whether the jury shall be allowed to separate after they have agreed on their verdict, and before it is rendered.
    BEFORE O'NEALL, J., AT DARLINGTON, FALL TERM, 1855.
    The report of his Honor, the presiding Judge, is as follows :
    “ This was an appeal from the decision of the Ordinary on the probate in solemn form of law, of the will of Henry Welch, deceased.
    “ The appellants are the executor, devisees and legatees: the appellee is the testator’s only lineal descendant — his grandson. The paper propounded bears date five years before testator’s death. It was written by John S. Huggins, the executor, and, with the appellee, a residuary legatee.
    “ It is unnecessary to report the volume of evidence given in the cause. The sole question in the case is, whether the propounded paper was sufficiently attested under the statute by three credible witnesses ?
    “ The paper has on its face the names of three persons as witnesses, — Absalom Oliver, Edwin Jordan, and James A. War, — the two first recollected the execution and proved their attestation in the presence of the testator. Oliver recollected that James A. War who, as well as himself, was a marksman, also signed as a witness in the presence of the testator. Edwin Jordan, who alone wrote his name, did not recollect James A. War signing — he remembered he was sent for. At the burial of the deceased, he said he would swear there were but two witnesses, himself and Oliver.
    “James A. War, who now lives in Alabama, attended the trial, and proved that he was called on by the deceased to witness a paper, which he did not remember to have seen him sign. Oliver he said witnessed the paper with him, and John S. Huggins wrote both names as they made their marks, (this appeared to be the fact, the names were in Mr. Huggins’ handwriting.) He did not recollect whether Jordan was there or not.
    “ There was much testimony confirmatory of the fact,' that the paper propounded was according to the testator’s previously expressed wishes.
    “ There was proof by one witness that the testator expressed a wish that he had settled the appellee before he went to Georgia ; if he had his own way he woul'd, he said, have done it; and that his property came by his first wife, the grandmother of Henry. The appellant, Elizabeth Welch, the widow of the deceased, was heard to say, that James A. War was not there the day the will was “written.” She said to the appellee with w'hom she was talking, that he ought to have had the property; that she did not enter the suit: he said it was entered Betsey Welch vs. Henry Welch: she said “surely not.” She is a very old woman.
    “ The case was submitted to the jury with very full explanations of the law. My charge closed after one o’clock, P. M., and as I was about leaving my seat to go to dinner, the foreman, Mr. William Evans, asked me if the jury should agree before I returned, could they disperse, get their dinner, and bring in their verdict at two o’clock, P. M. ? I said to him certainly? This course was so usual that I did not think to say to the bar, ‘ Gentlemen, are you willing that this verdict should be brought in after dinner ?’ The jurymen, in a few moments, dispersed, got their dinner, and were in their places at two o’clock, P. M.: they were called over; their verdict ‘for the will’was received: no objection was made at that time, (Friday,) nor until Saturday morning. If there was anything in the objection, it came too late.”
    
      Henry Welch, appealed and now; moved this court for a new trial on the grounds :
    1. That in the probate of a Will in due form of law, the requirements of the statutes are satisfied with nothing less than the independent and separate proof by each attesting witness, of the signature, or the testator’s distinct acknowledgment of his signature; and such proof was not furnished in this case.
    2. That James A. War, one of the alleged attesting witnesses, failed to prove the signature o'f the supposed testator, or his acknowledgment of his signature to the paper propounded as a will.
    3. That a constructive acknowledgment of signature to a will by a testator to an attesting witness, is not enough, though the other two witnesses swear positively to the signature; and the witness, War, in this case, proved nothing more than such constructive acknowledgment.
    4. That the jury after retiring to their room to' consider of their verdict, separated, without consent of parties, in 'the absence of the Presiding Judge from the Court House, and returned an unsealed verdict.
    5. That the verdict of the jury is contrary to law, and unsupported by the evidence.
    
      Inglis, for appellant.
    Dargan, contra.
   The opinion of the Court was delivered by

Whitner, J.

The prominent question in this ease is whether the paper propounded as a will was duly executed. The appellants point in their second ground of appeal to the alleged defect in the proof, the failure of one of the subscribing witnesses to prove the signature of the alleged testator or his acknowledgment, and in their first and third grounds suggest the legal propositions on which they rest their motion that the requirements of the Statute are satisfied with nothing less than the independent and separate proof by each attesting witness of these material facts. When these objections are met with the proof furnished by the other subscribing witnesses, it is insisted that any such omission can only be supplied by proof aliunde, otherwise the requirements of the statute of attestation by at least three credible witnesses would be futile. The requirements are plain and specific, and it is fully conceded that the' law sternly exacts a compliance with all the formalities set forth by the statute. But at last the true inquiry is, what in truth was done, the maxim holding good it is said in the execution of wills as well as deeds, non quod (dictum, sed quod factum est, inspicitur — as in other inquiry after the fact it is purely a question of evidence.

It cannot be maintained as a sound legal proposition that each witness must recollect and prove the fact of signature or testator’s acknowledgment. Such a principle would place the validity of wills on a very precarious basis, depending mainly on the selection of persons of retentive memories. The guard which the statute seeks to throw around the testator by requiring at least three witnesses on such a view would greatly multiply the hazard of disappointment, and yet more startling is the idea that such defect can only be supplied by testimony derived otherwise than from the remaining subscribing witnesses. It is supposed a less stringent rule would amount to a virtual repeal of the statute when a single witness might alone ' establish a will. To sustain the proposition contended for, would to my mind subvert the plainest rules of evidence. The dishonesty of a witness, the casualty of death as well as the frailty of memory would then become not only a serious but often an insurmountable obstacle in offering the required proof. Instead of withdrawing into a private, room and executing a will in the presence of the selected and confidential friends of the testator comprising the number indicated by the statute, it would become a matter of common precaution to assemble many beside, that these apprehended contingencies might be provided against. Authorities on the principles involved on which this case turns are to be found in 1 Jar. on Wills, 72, 73; 3 Pr. Wms. 253; 2 Str. 1109; 1 Met. 349; 5 Johns. 144; 1 N. & McC. 272; 8 Rich. 135.

This Court without division is of opinion that the evidence was quite sufficient to authorize the jury to find the will, properly executed.

The fourth ground complains that the jury after retiring to their room separated and returned an unsealed verdict.

The presiding Judge on leaving the Court room at the usual hour for dinner permitted the jury if they should agree before his return to disperse for dinner, and bring in their verdict at the close of the recess. Consent was not asked of counsel nor was any objection interposed when the verdict was rendered.

In 1832, a similar ground was taken in a case under like circumstances, except that the jury after they had agreed dispersed for dinner without permission of the Court: that verdict was sustained. Sartor vs. McJunkin, tried before Earle, J., though the case is found reported in 8 Rich. 451. The fact of separation with or without the permission of the Judge could make no difference as to the parties to the suit or the effect of the verdict. It might subject the jury to punishment as for a contempt, for when empanelled they have no right to disperse without leave of the Court. 4 Black. Comm. 375. During’the progress of a case they are permitted to separate, now almost universally in this State and from the very necessity of circumstances. After retiring they are permitted to separate when they have agreed, with the consent of parties. But it may well be doubted, as it has been, whether it is proper to ask for consent. Abbott, J., says, 1 Chit. 401, that if the question be put, the party cannot be supposed to exercise a free choice. His refusal to accommodate might excite the feelings of a jury against him.

It is perhaps better, and we so consider, that it is matter for discretion with the Court, whether the jury shall separate or not as well during the progress of the case as after verdict has been agreed on. Upon authority it is well sustained that a separation after an agreement cannot vitiate a verdict unless there is ground for suspicion that the jury have been improperly tampered with, and the verdict affected,by intervening circumstances.

In 2 Cowen, (Horton vs. Horton,) 589, and 3 Black. 27, will be found cases very similar to the one under consideration.

In Smith vs. Thompson, 1 Cow. 221, many authorities, English and American, are collected by the reporter.

The motion of appellants for a new trial is refused.

O’Nball, Wardlaw, Withers and Glover, JJ., concurred.

Munro, J., absent at argument.

Motion refused.  