
    Annie J. Harleston vs. Elizabeth Corbett.
    
      Wills and Testaments — Evidence—Attesting Witness — • Executors — Blind Testator.
    
    Poisons named as executors,in a will, being’ competent to attest it, stand as other witnesses, and if they be dead when the will is offered for probate, proof of their handwriting will be received.
    "Where a subscribing witness, named as executor, qualified, and then offered the will for probate in solemn form, but before the trial, died, and another was substituted in his place as plaintiff, held, that it was competent to prove his handwriting as subscribing witness. Declarations of a blind man, made after the execution of his will, may be given in evidence to show that he knew the contents of the will when he executed it.
    BEFORE MUNBO, J., AT CHARLESTON, JANUARY TEEM, 1859.
    The report of his Honor, the presiding Judge, is as follows:
    “Pursuant to the judgment of the Court of Errors, pronounced at January Term, 1857, remanding this case to the Court of Probate, then entitled William ■ E. Dawson vs. Elizabeth Corbett; see report of case in 10 Rich. 505; and for abstract of the facts see’ "pages 508-9 : “ to inquire and determine, whether the incompetence of Dawson to testify in the cause, can be supplied by secondary evidence,” application was made to the Ordinary for that purpose, who again refused to admit to probate the instruments in question, as the Will and Codicil of the late John H. Corbett, — so that the case again comes up in the way of an appeal from the Ordinary’s decision.
    “Here it may be proper to state — for it is not so stated in the former report of the case — that at the time the instruments in question purport to have been executed, the said John H. Corbett was totally blind, and such had been his condition for several years preceding their execution.
    “It further appeared, that since the case was before the Court of Errors, William H. Dawson, the executor, and whose name was indorsed upon the record as the plaintiff or actor, had departed this life; and that the name of Elizabeth Laurens, the testator’s sister, had been substituted upon the record in its stead ; and that sometime previous to the trial of the case, the said Elizabeth Laurens had also departed this life ; and that the name of Annie J. Harleston, an infant, and niece of testator, by her guardian ad litem, had been substituted in lieu thereof, and she is now the plaintiff in the cause.
    “In reference to the 1st and 2d grounds of appeal, I sustained the competency of the two attesting witnesses, William H. Dawson, and ASmilius Irving, both of whom are nominated as executors in the paper propounded as' the Will of the said Corbett, by admitting proof of the handwriting of the former, he being dead, and by permitting the latter to testify.
    “ I also admitted in evidence the conversations referred to in the 3d ground of appeal, between the witness, Dr. J. B. Irving, and the testator, subsequent to the execution of the Will.
    “As regards the 4th ground: in my instructions to the Jury as to the quality of the proof necessary to sustain a Will executed by one who is blind, they were in strict conformity with the views expressed in the opinion of the Appeal Court, in the case of Bay vs. Sill, 3 Strob., 812.
    “The Jury rendered a verdict, sustaining both the Will and the Codicil.”
    The defendant appealed on the grounds:
    1. Because it is respectfully submitted that his Honor erred in admitting proof as to the handwriting of W. II. Dawson.
    2. Because his Honor erred in ruling that W. H. Dawson and FEmilius Irving nominated as Executors* in the paper propounded as the last Will and Testament of John H. Corbett, were competent attesting witnesses to the same.
    3. Because his Honor erred in admitting evidence of conversations between the said John H. Corbett, the alleged testator, and the witness’, Dr. John B. Irving, occurring subsequent to the period of the attestation of the said alleged last Will and Testament.
    4. Because the requirements of the Statute of Frauds as to the execution of Wills, cannot be deemed to be complied with in the case of a blind man, unless there is some positive proof that at the time of the attestation of the instrument, he was made cognizant of its contents; and this, it is respectfully submitted, can only be done by instructions or reading over; and his Honor erred in charging the contrary.
    
      Buist, Yeadon, for appellant.
    1. The handwriting of W. H. Dawson, one of the subscribing witnesses to the will, could not be proved, inasmuch as he was a qualified executor of the alleged testator, and could in no event, and under no circumstances, be a competent witness.
    2. In the case of the will of a blind man, it is necessary to prove, either that it was read over to him at its attestation or execution, or that he gave instructions as to its draft, and that it conforms to such instructions; and it is not, sufficient to establish a knowledge of its contents by proof derived from conversations between the alleged testator and a third person, subsequent to the attestation and execution. 5 Stat. 106 ; 2 Stat. 520 ; 6 Stat. 238 ; Swinburne on Wills, 87 ; 2 Domat’s Civil Law, 302 ; Bay vs. Sill, 3 Strob. 297; Boyd vs. Gooh, 3 Leigh, B. 32 ; Moore vs. Paine, 2d Lee’s Eo. B. 95 : Fincham vs. Edwards, 3 Curtios, 63 ; Barton vs. Bolins, 3 Phillemore, 434; Longshamp vs. Fish, 5 Bos. & P. 415 ; Lewis vs. Lewis, 6 S. & B. 489 ; Beynolds vs. Beynolds, 1 Sp. 253; Neil'vs. Neil, 1 Leigh, B. 6 ; 11 Stat. 41; Wms. on Ex’ors, 17, 494. ’
    
      Memminger, contra,
    cited 2 Bay, 187 ; 1 Phil. 466, 501.
   The opinion of the Court was delivered by

Johnstone, J.

The nature of this case is unfolded (10 Rich. 505) by what took place in the Court of Errors, when the will of this testator, and that of John Bull of Abbeville, were brought, together, before it.

It was decided, in both cases, that the attestation of one named as executor was valid; that his qualification or renunciation, after testator’s death, could neither give validity to the will, nor invalidate it; that a person named as executor was a competent witness to testify on the probate of the will, if he was no party in the cause, and had no interest in it, when called to testify; and whatever interest, be it official or other, which the executor derived from his being nominated in the will, was frustrated by the operation of the statute 25 Geo. II. ch. 25.

The order of that Court was as follows: “ The case of Wm. P. Noble vs. Andrew P. Burnett must go back to the Circuit Court upon the ground of error, in excluding Edmund C. Martin” [who was no party to the record] “ for incompetency to attest the execution of the will in question. And the other case must go back to the Court of Probate, upon the same ground of error, and that Court be left to inquire and determine whether the incompetence of Dawson” [the executor, wbo was the party on record propounding the will] “ to testify in the cause, can be supplied by secondary evidence. And it is so ordered and adjudged.”

The case of Dawson went back, but before it could be brought to a conclusion, he died, and the case fell through. It was then, by fresh proceedings, brought by the plaintiff to a hearing : and this is an appeal.

The point, that the subscribing attestation of the executors was valid,' was decided by the Court on the former occasion, and should not again be_ drawn. in question.

Certainly, proof of the signature of Wm.H. Dawson was competent, he being dead.

As to the other grounds, there is ho difference of opinion among us. The principle, in the case of a blind testator, is, • that proof is competent to show that he was aware of what his will contained, when he executed it. The mode of his having become cognizant of its contents is not restricted; any proof, which satisfactorily shows this, is competent. And the jury having decided on proper testimony, and which, on examination, is satisfactory, the verdict should stand.

It is ordered that the motion be refused.

Wakdlaw, J., concurred.

O’Neall, C. J.'

I dissent on the matters embraced in the first, second, and third grounds of appeal. I concur on the fourth ground.

Motion dismissed.  