
    Miller and another against Carothers and others.
    
    
      Monday, October 16.
    Every paper found in the office of a deputy surveyor, is not to be deemed clfpaJei'sUt found among his ornee papers, may be Eé efiU* eial> (unless contrary appear,) provided there were any orders in his hands, to the execution of which, the papers in question might relate. Where therefore a deputy surveyor-had in his hands an application for S00 acres, and a warrant for 100 acres belonging to C., on which no surveys had been returned, a draft of 1492 acres, made by the deputy surveyor and found in his office, which did not appear to represent a survey on either the application or the warrant, but to be an outline of all the lands claimed (by G., comprehending those claimed under the application and warrant, and noting the interferences of other rights, without mentioning the right under which the adverse party claimed, was held to be a proper paper to be submitted to the jury, who should give it such weight as in their judgment it might be entitled to.
    Where there were three subscribing witnesses to a will devising lands, one of whom only appeared before the register and proved the will in the usual form, after which he died, another of whom was a devisee and a party to the suit, and the third was dead and his hand-writing could not be proved, it was held, that evidence might be given of the hand-writing of the testator, which, together with the oath of the witness before the register, was deemed sufficient proof of the execution of the will.
    In Error.
    EJECTMENT in the Common Pleas of Cumberland , COUnty.
    . . „ The facts, so far as it is necessary to state them, appeared to be these. John Carothers and others, the plaintiffs in the lower Court, made title to the-land in dispute, which consisted or 240g acres in' West Fennsbury township, under William Carothers, decease,d, by whom it was devised to them. They gave in evidence, an application in the name of jo 7ii William Carothers, dated 21st May, 1768, for 300 acres, and a warrant to the same William Carothers, dated 28th December, 1770, for 100 acres. The defendants, Henry Miller and Robert Blain, claimed under an application for 250 acres in the name of James Byers, dated October 8th, 1766, on which a survey was made for Ephraim Blain, comprehending the land in dispute. This survey was made, either in the year 1787 or 1798, it was uncertain which, and returned in the year 1800. On the return it was noted “ that the land was disputed by the heirs of William Carothers, junr., who claimed under an application for 300 acres, dated 21st May, 1768, and a warrant for 100 acres, dated 28th December, 1770.” The plaintiffs offered in evidence, a draft of a body of land amounting to 1492 acres, said to be claimed by them in right of William Carothers, having first proved that the draft was the work of Samuel Lyon, deputy surveyor, (who it was admitted, was at the time the brother in law of Ephraim Blain,) and was found in the office and among the official papers of the deputy surveyor of the district. On the margin of this draft was written, in the hand writing of Samuel Lyon, “ Surveyed November 18th, 1791.” Several interferences with the lands of Carothers were noted on the margin, but the defendants’ interference was not mentioned. To this evidence, the counsel for the defendants excepted, but the Court admitted it, and an exception was taken to their opinion.
    The plaintiffs produced a paper purporting to be the testament and last will of William Carothers, junr., to which there were three subscribing witnesses, one of whom only, John Kean, had appeared before the Register of Wills, and proved it by his oath, in the ordinary form, and was since dead. Armstrong Carothers, another of the subscribing witnesses, was a devisee of part of the land in dispute, and one of the plaintiffs in this suit. James Carothers, the third subscribing witness was dead. After having proved the death of John Kean and James Carothers, and that due diligence had been used, in vain, to find a witness who could prove the hand writing of James Carothers, the plaintiffs offered to prove the hand writing of the testator. The counsel for the defendants objected to the evidence, but the Court admitted it, and upon this proof, together with the oath of Kean before the Register, permitted the will to be read to the jury, which had likewise been opposed by the defendants’ counsel. On both these points bills of exceptions were sealed.
    
    
      Alexander and Metzger, for the plaintiffs in error.
    Our objection to the draft admitted by the Court below is, that although found in the - office of the deputy surveyor, it was a private unauthorised survey, which was probably •placed in one of the pidgeon holes of the deputy surveyor, and accidentally handed over to his successor. It comprehends lands previously surveyed for other persons, as well as those claimed by Car others, and bears on the face of it no mark of having been an official act. No case hitherto decided in Pennsylvania, has gone so far as to authorise the admission of such evidence. It differs from the case of the Lessee of Funston v. McMahon, 2 Teates, 245, because the evidence there admitted, was merely corroborative. It differs from the case of Shields’s Lessee v. Buchannan, 2 Teatess 219, because there the survey had been returned and accepted. It differs materially from the case of Sprout v. Plumsted’s Lessee, 4 Binn. 189, because the evidence there was of a rebutting nature. In the case before the Court, the draft was offered as part of the plaintiffs’ title, and there is a wide difference between evidence of that description, and evidence, the object of which is to do away the effect of adverse testimony. Although the plaintiffs had given in evidence a location and warrant, yet there is nothing by which they can be connected with the survey, nor was there any evidence that Lyon, the deputy surveyor, knew of their existence. It was a survey unsupported by a warrant or any other authority that can be discovered, and therefore was no validity. Cosby v. Lessee of Brown. 2 Binn. 128. Lessee of Sims v. Irvine.. 3 Dali. 457. Lessee of Harris v. Monks. 2 Serg. Es? Rawle, 559. Lessee of M'-Kinzie v.Crow. 2 Binn. 105. Lessee of Steinmetzv. Toung. 2 Binn. 520. Nicholas v. Holliday. 2 Sm. L. 257. Lessee of Evans v. Nargong. 2 Binn. 58. Lessee of Miles v. Potter. 2 Binn. 70. Carnahan v. Hall. Addison, 130. Lessee of Gripe v. Baird. 3 Teates, 528. Lessee of Penn v. Klyne. 4 Dali. 408. Lessee of Galloway v. Ogle. Z Binn. 468. Jackson v. Witter. 2 Johns. 180.
    2. The admission of the paper said to be the will of William Carothers, was likewise erroneous. The act of 1705, Purd. 648, requires proof by two witnesses, which in this case was not supplied. Of the three witnesses who subscribed the alleged will, only one appeared before the register, and no letters testamentary were issued. This partial and defective probate was a mere nullity; and it was as necessary afterwards to prove the paper by two witnesses, as if the oath of -Kean before the register had never been taken. Instead however of doing this, after having endeavoured unsuccessfully to prove the hand-writing of James Carothers, one of the subscribing witnesses, the plaintiffs offered evidence of the hand-writing of the testator himself, which the Court admitted. We contend, that unless evidence were previously given that the other subscribing- witnesses were dead or out of the jurisdiction of the Court, and no proof could be obtained of their hand-writing, such evidence was irregular and inadmissible. The case of Clark v. Sanderson, 3 Binn. 192, encroached upon the rigour of the ancient law, by permitting evidence to be given of the hand-writing of the obligor, where the subscribing witness was beyond the jurisdiction of the Court, and his hand-writing could not be proved. Further than this it has never been relaxed, nor can it be, without endangering that safety which is to be found in an adherence to the settled and well founded rules of evidence. They cited also Havard v. Davis. 2 Binn. 414. Esp. N. P. 487. (New York Ed.)
    
    
      Mahon and Carothers, for the defendants in error.
    1. Was the draft evidence ? It was by no means so clearly a private paper as to justify the Court in deciding that it was not official, and therefore refusing it as evidence. It was found in the office of the deputy surveyor, which alone is sufficient to authorise its being received. Even a letter from an assistant deputy surveyor has been admitted to prove the property of a location. Lessee of Peterson v. Churchfield. M S. Rep. Whether it was official or not, was a matter of fact of which the jury were the proper judges. It was a survey purporting to have been made in the year 1791, when'no return had been made on Blair’s location in the name of Byers, and might have been made officially, with a view to ascertain for whom the survey should be returned; for the return of Blain’s survey in 1800, states, that the land was claimed by the heirs of WilHam, Carothers, junr., under a warrant for 100 acres, and a location for 300 acres. Thus it appears, that this warrant and application were in the hands of the deputy surveyor when he made the draft, and the inference is a fair one, that the work was done in, reference to them. We contended that the plaintiffs’ survey was made in the year 1787, and Blain’s not until 1798, and therefore it was competent to the plaintiffs to shew any acts of the deputy surveyor prior to the return of Blain’s survey, or at least prior to 1798, when we say it was made, in order to establish the fact, that the, survey in 1787, was really made for Carothers, though after-wards returned for Blain. A survey may be good, though nothing appear on its face to shew by what authority it was made, provided it be shewn to the jury that some authority existed. Sproul v. Lessee of Plumsted. 4 Binn. 189. The survey in question comes within this principle. The location of 21st May, 1768, and the warrant of 28th December, 1770, had been given in evidence, and it was the province of the jury to determine, whether the draft was made in pursuance of them. ' If it tended, either to establish the title of the plaintiffs, or to impeach the conduct of the deputy surveyor, who, it was contended, had improperly returned for another, the survey made for Carothers, it was evidence. It was evidence to shew, that he had prosecuted the right commenced under his descriptive application ; for even a void survey is admissible to shew that a location has not been abandoned. Lessee of Hubley v. White. 2 Teates, 138. Lessee of Funston v. Mahon. 2 Teates, 246. It was the opinion of Judges Yeates and Brackenridge, in the case of Lessee of Blaine v. Johnson, 3 Binn. 106, that the draft now in question, which having been discovered ,after the trial in that case was over, was one of the grounds of a motion for a new trial, was evidence to go to the jury.
    
      2. The will was well proved. Armstrong Carothers, one of the subscribing witnesses, was a devisee , and one of the plaintiffs in this suit. His oath or proof of his hand-writing was therefore out of the question. It was proved that Kean was dead, and evidence was given of his hand-writing. It was shewn that due diligence had been ineffectually used to procure proof of the hand-writing of James Carothers, and the hand-writing of the testator was proved. In addition to this, the oath of Kean, made before the register of wills, was adduced. If this will had been proved by two witnesses before the register, it would have been perfectly good evidence, and it will not be pretended that the law requires the witnesses to be sworn together. Why then should not the oath of Kean be a valid probate as far as it goes ? If that position be correct, then his oath before the register, together with the proof given in Court of the testator’s hand-writing, was proof by two witnesses, which is all the act of assembly requires. Proof of the testator’s signature alone is sufficient, where the subscribing witnesses are dead, or not within the jurisdiction of the Court, and no proof of their hand-writing can be obtained. Phill. Ev. 582. 4. Clark v. Sanderson. 3 Binn. 192. Hamilton v. Marsden. 6 Binn. 45.
    
    In another view of the subject the will was admissible. It was evidence as an ancient paper accompanying the possession and never disputed by the heir. An ancient will, like an ancient deed, may be proved by a long possession under it. Jackson v. Blanshan. 3 Johns. 292. An ancient will which has accompanied the possession thirty years, requires no proof. Shaller v. Brand. 6 Binn. 543. In the present case, twenty four years had elapsed from the time of the testator’s death before Blain recovered possession of the land in controversy, and thirty-one years before the time of trial. During this period it was never claimed by the heir at law, who on the contrary accepted a legacy given to him by the testator.
    The Court intimated to the counsel for the plaintiffs in error, that it was unnecessary to reply to the point, that this will, accompanying the possession of the Carothers’ family, proved itself.
    
      
       It did not distinctly appear whether the hand-writing of John Kean had been proved at the trial. The counsel for the plaintiffs in error, argued as if it had not; the counsel for the defendants in error, asserted that'it had. But this discrepance is not material, as the opinion of the Chief Justice is grounded upon the proof given of the hand-writing of the testator in connection with Kean’s oath before the Register of Wills. ' Reporters,
      
    
   Tilghman C. J.,

after stating the principal facts connected with the admission of the draft in evidence, delivered the opinion of the Court as follows.

The evidence was very important to the plaintiffs, who contended, that the land which was surveyed and returned for Ephraim Blain (father of the defendant,) on Byers’s application, was in fact previously surveyed, and ought to have been returned for them, on the application in the name of William Carothers. They supposed that the survey on Byers’s application was in truth not made until the year 1798, though alleged by Mr. Lyon with intent to give an unjust advantage to his near relation, Mr. Blain, to.have been made in 1787. But was this proper evidence? If the work was done in the course of Mr. Lyon’s official duty, it was evidence i but I protest against one of the principles contended for by the plaintiffs’ counsel, that it must be presumed to be an official paper, because found in the office, and among the official papers of the deputy surveyor. We know that these deputy surveyors are much employed in private business, and that it is very probable their private papers may be sometimes mixed with their official ones, without any ill intention. It is possible too, that private papers may sometimes be introduced into the office either by themselves or others with a fraudulent design. But I grant, that neither accident nor fraud should be presumed, and that all papers found among the official papers, may fairly be supposed to be official, (unless the contrary be proved,) provided there were any orders in the hands of the deputy surveyor to the execution of which the papers in question might relate. By this test we must try the draft offered by the plaintiffs. The deputy surveyor had in his hands, at the time the survey represented by this draft is supposed to have been made, an . application and a warrant belonging to Carothers, the former for 300, the latter for 100 acres, on which no surveys' had been returned. The draft contains 1492 acres, and does not seem to represent a survey either on the application, or the warrant. It appears to be the outline of all the lands claimed by Carothers, perhaps under various rights—but the land now in controversy is contained in it. I had Considerable doubt at first, whether it did not appear on its face, to be merely a private survey made at the request of Carothers; but upon reflection, I think it would be going too far to say, that it might not relate to the application, or the warrant, on which no survey had been returned. Mr. Lyon might have thought it necessary, before he made these returns, to run this outline, noting as he has done, the interferences of other rights, among which we see nothing of a survey on Byers’s application. In that point of view it was a paper, proper to be submitted to the jury, who'would give it such weight as in their judgment it might deserve. I am therefore of opinion that it was good evidence.

The record contains two other bills of exceptions, relative to a paper offered in evidence by the plaintiffs, purporting to be the last will and testament of William Carothers, junr. There were three subscribing witnesses to this will; Armstrong Carothers, (óne of the plaintiffs in this cause, and also a devisee claiming part of the land in dispute, under the will,) James Carothers, deceased, and John Kean, also deceased. The plaintiffs proved that John Kean was deád, and also James Carothers, and that due diligence had been used without success, to find a witness who could prove the handwriting of James Carothers. They then offered to prove the hand writing of the testator, to which the counsel for the defendants objected, but the Court admitted the evidence. It is an important circumstance, that John Kean had appeared before the Register of Wills, and proved the will by his oath in the usual form, but none of the other subscribing witnesses had proved it. This appeared by the original will, produced to the Court, with the certificate of the Register annexed.—What objection then, could there be, to the proof of the testator’s writing? The objection was, that the plaintiffs should first have proved the hand-writing of the subscribing witnesses, two of whom were dead, and one, (Armstrong Carothers,) a party to this suit. It is true, that in general, the subscribing witnesses are first to be resorted to. If living and within the jurisdiction of the Court, they should be produced. If dead, their hand-writing should be proved. But under particular circumstances, the general rule is dispensed with. Let us consider the circumstances attending each of these subscribing witnesses. If Armstrong Carothers had been a good witness at the time of the execution of the will, and had afterwards become interested, it might have been a question, whether his hand-writing ought not to have been proved. But that was not the case. He was a devisee in the will, and interested from the beginning -he was therefore never what our act of assembly calls a credible witness;—he was never a competent witness. Under the circumstances of the case, he was to be considered as if he had never been a subscribing witness, and it would have been improper to prove his hand-writing. Next as to James Carothers.—The Court below had satisfactory evidence that due diligence had been used, in searching fot a witness who knew his hand-writing. But none such could be found. The case falls therefore within .the reason of Clark v. Sanderson, decided by this Court, and reported in 3 Binn. 192. According to the principles of that decision, proof of the hand-writing of the witness is dispensed with. The remain-, ing witness, John Kean, had proved the will, (so far as his oath could go,) before the Register, and this certainly was much more to the purpose than proof of his hand-writing to the Court and jury.-—He had sworn to his own handwriting, and his oath before the Register was evidence in this cause. It was administered by an officer authorised by law and acting in the course of his duty.—By our law, the Register takes probate of wills disposing of both real and personal estate. As to personal property, the probate is conclusive. But not so as to land. The will may be controverted in an ejectment; but our Courts of law have always admitted the probate before the Register as prima facie evidence. If this will had been proved by two witnesses before the Register, the probate would have been evidence, and there is the same reason for admitting as evidence, the oath of only one,' which though not sufficient of itself to establish the will, is good as far as it goes, and with the addition of one more, will make complete proof. If James Carothers had been living and had come into Court, his oath, added to that of Kean before the Register, would have been sufficient. But he was dead, and his hand-writing could not be proved. It was necessary, therefore, to resort to the hand-writing of the testator, and the Court of Common Pleas were right in admitting it.

This leads into the third bill of exceptions.—The plaintiffs, having proved the hand-writing of the testator, offered the will, with the oath of John Kean annexed, in evidence, and the Court admitted it. After what has been said, my opinion must be evident, that the will was properly received in evidence.—Our law requires that a will should be proved by tvjo witnesses. But it does not require that the witnesses should subscribe their names, or that they should be present at the execution of it. The signature of the testator made in the absence of all witnesses and proved by two witnesses, is sufficient. Suppose then, that the will is signed by the testator in presence of any one subscribing witness. The oath of that witness, and the oath of another witness who could swear to the hand-writing of the testator, would make two credible witnesses, within the meaning of our act of assembly. This is the very case before us in spirit, though not in letter. We have the oath of one subscribing witness, and of another witness who proved the hand-writing of the testator, though he was not present at the execution of the will, and good reasons have been given why the testimony of the other subscribing witnesses was not produced.

I am of opinion that there is no error in this record, and therefore the judgment should be affirmed.

Duncan J., who had been counsel for the plaintiffs in error, gave no opinion.

Judgment affirmed.  