Fatheree v. Lawrence

| Miss. | Oct 15, 1857

Handy, J.,

delivered the opinion of the court.

This is an appeal from the order of the Probate Court of Copiah county, admitting to probate an instrument of writing, purporting on its face to be the last will and testament of Elizabeth Lawrence, deceased, which bore date the 7th September, 1833.

The paper was offered for probate at the July Term, 1856, of that court, by the present appellee, who is one of the legatees named in it; and the application was resisted by the appellants, as administrators of Thomas D. C. Lawrence, who claimed the property bequeathed by the will to the appellee. Upon the investigation of the case, the material facts proved were, in substance, as follows.

It appears, by written entries made upon the paper, that it had been filed for probate, in the Probate Court, on the 11th day of December, 1833; that it was recorded in the Record Book of Wills, and that it was taken from the files of that court, when it was propounded for probate on this occasion. Upon its face it purported to be the last will and testament of the testatrix in due form, and to be signed by her, thus: “Elizabeth W Lawrence, [s.];” and it was also signed by subscribing witnesses, thus: “ Test. George Ellis, George Ellis, Jr.;” and an affidavit appears written upon it as follows: “Probate Court, December Term, 1833. George Ellis, Junior, one of the witnesses to the within will, being duly sworn, did depose and say, that he saw Elizabeth Lawrence, the testatrix therein named, sign and seal the same, and heard her publish, pronounce, and declare the within writing to be her last will and testament, and that he saw George Ellis sign the same as the other witness, and that at the doing thereof, the said testatrix was of sound and disposing mind and memory, as far as he verily believes.

“George Ellis, Jr.

“ Sworn to, and subscribed in open court, this 22d December, 1833.

“ Rowland Johnson, Oik. pro tem.”

It was admitted, that no order or entry of any kind was to be found among the minutes of proceedings of the Probate Court of that county, in relation to the will of Elizabeth Lawrence, although a minute-book of its orders and decrees was kept by that court.

George Ellis, Jr., one of the subscribing witnesses to that paper, was produced as a witness, and stated in substance, that Elizabeth Lawrence was sick some time at witness’s father’s house, and he thinks that the paper was written during that time, and that she died a short time after the date of the instrument; that it is in his handwriting, and he is satisfied that he wrote it, and believes that the name signed to the affidavit indorsed upon it, is his signature; that his father, George Ellis, the other subscribing witness to the instrument, died in October, 1833; that he believes that he, the witness, signed the name of the testatrix to the instrument, and does not think that he would have signed her name to it had he not been requested by her to do so; that all he recollects is, that there was a will of Elizabeth Lawrence, and he only recollects that, from the fact of his having written it; that he recollects nothing about the execution of the instrument, but thinks that he would not have attested and subscribed it, had not the instrument been duly executed ; but that he might have subscribed an illegal instrument, and does not know that he knew, what was a legal instrument; that he was living with his father, George Ellis, at the date of the instrument, and believes that Elizabeth Lawrence was there at that time; that the signature of the first attesting witness is in the handwriting of his father; that he cannot recollect whether he and his father subscribed their names as attesting witnesses to the instrument in the presence of the testatrix, and all that he distinctly recollects about the transaction is that Elizabeth Lawrence made a will, but from lapse of time, all the circumstances connected with and attending its execution have faded from his memory; that it was the common understanding among her relatives, as he believes, that she had made a will; that she was more than twenty-one years of age at the time, and he supposes that she was of sound and disposing mind, but as to that he could not speak positively, owing to lapse of time.

On cross-examination, he stated, that he believes that his recollection of the facts and circumstances connected with the execution and attestation of the will, was more perfect at the date of the affidavit indorsed upon it, than at the time of his present examination, by reason of the lapse of time; that he believes the will was executed in good faith, and that it was intended to be executed as other wills are. He further stated, that he had no independent recollection of writing the will, of signing it as a witness, or of signing the name of the testatrix to it; and that he only believes that he wrofe it, signed it as a witness, and signed her name thereto, from the handwriting, believing it to be his own.

It was further' shown, that Elizabeth Lawrence left three heirs at law, Thomas D. C. Lawrence (who is since dead, and the appellant’s father and wife are his administrators), William H. Lawrence, the father of the appellee, and Mrs. Chain; and it was admitted that Thomas D. C. Lawrence had possession, at the time of his death, of the slave bequeathed in the will to the appellee, and that he purchased the slave and her children, in the year 1840, from William H. Lawrence, the appellee’s father, from whom he took a bill of sale, and that the slave went into the possession of Thomas, under that bill of sale.

Other evidence was offered, for the purpose of showing that the practice in that court had been loose about the time this instrument was offered for probate in 1833; but the particulars of it are not material to the consideration of the case as it is here presented.

The subject-matter of this controversy has been heretofore before this court upon the question, whether this will was to be considered as having been legally admitted to probate, in virtue of the indorsements made upon it in the year 1833, and of its being recorded by the clerk in the book for the registration of wills in the Probate Office of Copiah county. That question was decided here in the negative, Fatheree v. Lawrence, 30 Miss. 416" court="Miss." date_filed="1855-12-15" href="https://app.midpage.ai/document/fotheree-v-lawrence-8256914?utm_source=webapp" opinion_id="8256914">30 Miss. 416; upon the ground that it did not sufficiently appear that the Probate Court had either admitted, or refused to admit, the will to probate. And it is to be inferred, that it was in consequence of that decision that the instrument was again propounded for probate in the proceeding which is now before us. The question for decision now is, whether the evidence adduced, upon the presentation of the will since the former decision, was sufficient to establish its due execution, and to entitle it to probate, and whether the court below erred in admitting it to probate.

It appears, from the evidence, that the instrument was attested by two witnesses, George Ellis and George Ellis, Jr.; the former of whom died shortly after its date, and the latter was called to testify in relation to the matter, after the lapse of nearly twenty-three years from the date of its execution. He proved his own signature and that of his father, the other subscribing witness; that the instrument was in his handwriting, and that the signature of the testatrix to it was also in his handwriting; but that, from lapse of time, all the circumstances attending its execution had faded from his memory. He further stated that he did not think that he would have signed the paper, as a witness to its execution, had it not been regularly executed, though he was not certain that he knew what was necessary to its legal execution; and that it was the common understanding among the relatives and friends of the testatrix, that she had made a will.

The statute regulating the execution of wills simply requires that certain formalities shall be complied with; but no mode of proof of such requisites is prescribed, and accordingly the principle is well settled, that when the formalities required by statute, and which from their nature must be shown by the face of the paper, appear to have been complied with, presumptions may be indulged, under certain circumstances, that other incidental requisites were complied with, so as to give validity to the will. Upon this principle presumptions have been allowed in a variety of cases, after a great lapse of time, to sustain wills regular on their face, in cases of death of witnesses or defect of memory.

In Jackson v. Luquere, 5 Cowen, 221, the rule is stated to be, that “ if the witnesses are dead, proof of their handwriting and of that of the testator, are properly to be left to the jury, upon the question, whether under such circumstances, it may not be presumed that the formalities of the statute were observed.”

In Fetherly v. Waggoner, 11 Wend. 599, the question arose, whether the three subscribing witnesses attested the will in the presence of the testator. Two of the witnesses being dead, the third one was called, and stated that she did not recollect whether one of the witnesses was present or witnessed the will. This witness was called after the lapse of thirty-six years, and it was held, in effect, that her testimony was sufficient to establish the will, because after so great a lapse of time it was not to be expected that the circumstances attending the transaction could be recollected distinctly.

In Jackson v. Le Grange, 19 Johns. 386" court="N.Y. Sup. Ct." date_filed="1822-01-15" href="https://app.midpage.ai/document/jackson-ex-dem-le-grange-v-le-grange-5474485?utm_source=webapp" opinion_id="5474485">19 John. Rep. 386, a subscribing witness proved the handwriting of a subscribing witness who was dead, but stated that the deponent never knew the testator, nor did he know that he had ever seen him, nor had he any recollection of any fact in relation to the execution of the will, except that derived from the fact of his name being subscribed as a witness, from which he supposed that he must have seen it executed. He knew the requisites of a good execution of a will, but had no knowledge or recollection that he saw the other witnesses sign their names, or that they saw the testator sign his name. The proof was held to be insufficient, because a third subscribing witness was shown to be living, and was not called; but otherwise, the testimony of the witness was held to be sufficient. And the court say, “ The law does not require impossibilities, and, therefore, when the will has been executed for a long period before the trial, it is not ordinarily to be expected that the witnesses will he able to remember all the material facts. In this respect, a will may be compared to a deed, the execution of which is denied. If the subscribing witnesses prove their signatures, though they may not be able to recollect the delivery, yet if they declare that they never subscribed as witnesses without a due execution of the deed by the grantor or obligor, such proof would be sufficient. So, also, if the subscribing witnesses to a will are dead; the proof of their signatures and that of the testator, is sufficient. Prima facie the law will intend a due execution.”

The same principle was sanctioned by the Court of Appeals of Virginia, in Clarke v. Dunnavant, 10 Leigh, 13, when the probate under consideration depended, as was'said by Judge Tucker, “upon the question how far the defects of the memory of the witnesses can be supplied by mere inference from their attestation,” some of the requisites of the statute being proved.

In that case, the will purported to be executed in the presence of three attesting' witnesses. The first witness proved his own signature, and thought that the testator acknowledged it in his presence, from the fact of his having signed it as a subscribing witness, which otherwise he would not have done. The second witness proved his own signature, but had no recollection of the fact of signing it as a subscribing witness, and stated that he would not have subscribed it, unless he had been requested by the testator to do so; but that if the testator had acknowledged the will and requested him to witness it, he would have done so, whether the testator was present or not, at the time of his subscribing as a witness. The third witness proved his own signature, but had no recollection of having been requested by the testator, or by any other person, to witness the will; that he would not have subscribed it unless requested by the testator, and he had thought that everything about it was regular; he did not know' how the law required wills to be witnessed, nor recollect when he subscribed as a witness, nor who was present, nor whether the testator was present.

In sustaining a probate granted under these circumstances, and where the witnesses were called after the lapse of only about nine years from the attestation, the rule is thus stated by the court: “ That on a question of probate, the defect of memory of the witnesses will not be permitted to defeat the will, but that the court may, from circumstances, presume that the requisitions of the statute have been observed, and that they ought so to presume from the fact of attestation, unless the inferences from that fact are rebutted by satisfactory evidence.”

And the same rule is héld in Dudleys v. Dudleys, 3 Leigh, 443, where it is well said, that “ a contrary course would defeat a vast number of deeds and wills; for it may often happen, and frequently does happen, that a witness, not only does not remember to have seen the signature, hut he does not remember the acknowledgment or attestation; but when he sees his name subscribed by himself, as a witness, and knows that he would not have witnessed a blank or unacknowledged paper, he feels no more doubt of the due execution of the paper than if he distinctly recollected all the circum.stances.”

The testimony of the subscribing witness in this case is more full and satisfactory than that in any of the cases above cited, and was abundantly sufficient to justify the presumption that everything necessary to the valid execution of the will was done, unless there be circumstances in the case destroying this presumption.

It is insisted, in behalf of the appellants, that there are such circumstances, and we will proceed to consider the reasons urged in support of that view.

First. It is said that the delay in probating the instrument affords evidence against its validity. There is no question of its genuineness, nor could there be under the proof, and the objections to it are confined to the sufficiency of its execution. It is said, that the failure to have it probated for so great a length of time, creates a presumption that it was not duly executed, and should not be admitted to probate.

But the force of this objection is destroyed by other circumstances in the matter. It appears that some steps were taken towards the probate of the will in December, 1833; at which time it was filed in the Probate Court, where it remained until produced for probate in the proceeding now under consideration. It was recorded by the clerk of that court in the Record Book of Wills, as a duly probated will, and no order of the court is shown refusing to'admit it to probate. These circumstances, although not sufficient to show a legal probate, tend strongly to show that the parties in interest considered the will as duly admitted to probate. It appears by the former suit between these same 'parties, that the will was considered by the appellee and his counsel, and was held by the Circuit Court, to have been duly admitted to probate. And there is scarcely an unlearned man in the country, who would not act upon the belief, that a will, offered for probate in the Probate Court, with no order rejecting it, the original remaining on file in that court, and recorded in the book for the registration of wills, with other wills duly probated, was regularly admitted to probate.

Under these circumstances, therefore, we do not think that the delay in the proceeding now before us, raises any presumption against the validity of the will, or tends to destroy the presumptions in its favor arising from the evidence. ' ,

Secondly. It is insisted, that although the proof of the handwriting of the subscribing witnesses made by the witness, George Ellis, Jr., when the will was admitted to probate, might be sufficient to warrant the presumption of due execution, after so great a lapse of time, yet as he was examined as a witness in 1883, upon the former application to probate the will, and did not then state that the will was signed by the witnesses in the presence of the testatrix, his failure to state that important fact, when his recollection of the- transaction must have been fresh, and when he must be taken to have stated all he knew about it, destroys the presumption of its existence, arising from the mere proof of handwriting and lapse of time.

This objection assumes, that the affidavit indorsed on the will, in 1833, must be taken as containing all the facts within the deponent’s knowledge in relation to the execution and attestation of the will. But it does not appear under what circumstances the affidavit was prepared, nor that the affiant was produced and sworn in court, to state all the facts, which transpired upon the execution of the will, nor that he undertook to make a full statement of all the facts attending the execution. It simply appears that he made and signed an affidavit in open court, stating certain facts in relation to the matter; and it is highly probable that it was prepared by some other person supposed to be competent, and out of court, as such affidavits not unfrequently are, and that it was signed and sworn to by the affiant, under the belief that the facts stated in it were sufficient to establish the will. For it does not appear to have been taken as a deposition, under the direction of the court, nor to have been in any way acted upon by the court. And it appears, from the testimony of the witness in the last proceeding, that the affidavit did not state all the material facts within his knowledge in relation to the matter; for he there states that the testatrix -was of lawful age to make a will, which fact was omitted in the affidavit of 1833. To hold it, therefore, as conclusively stating all the witness knew in relation to the transaction, would be giving it greater weight and solemnity than its real character demands.

But in addition to this, there are other collateral facts appearing in the evidence, which tend strongly to show that the will was signed by the witnesses in the testatrix’s presence, and to corroborate the legal presumption above stated.

It appears that the will was written by the witness, George Ellis, Jr., whilst the testatrix was sick at the house where he and his father, the other subscribing witness, lived at the time; and that George Ellis, Jr., signed her name to it, to which she added her mark, in his presence, and declared it to be her will. And his name is found to it as a subscribing witness. It is in the last degree improbable, that he signed his name as a subscribing witness at another time, and not at the time the act intended to be attested was done, and when all the means of attestation were at hand. But he also saw George Ellis sign it, and his name appears to it as a subscribing witness, written on the line immediately above that of the witness deposing, which renders it almost certain, that if George Ellis, Jr., attested it in the presence of the testatrix, his father, whose signature preceded his, also attested it at the same time; for certainly neither of them could have attested it before it was signed by the testatrix. Then all the parties being together about the same house, the paper being written by one of them, who also signed the testatrix’s name to it, saw her affix her mark to it, attested it himself, and saw the other witness sign it, it is beyond the bounds of all probability that the signing of the name of the testatrix, her affixing her mark, and declaring the instrument to be her will, and the attestation of the subscribing witnesses, were not all done at the same time; and if so, necessarily in the presence of the testatrix.

But if this objection were well taken, as to the testimony of George Ellis, Jr., it does not apply to the attestation of George Ellis, his father. Nothing is shown, to destroy the legal presumption of due execution, in the presence of that witness. And as the will was sufficiently executed, as to the personal estate, if signed and published in the presence of one witness, and the evidence was sufficient in law to establish its execution in the presence of George Ellis, it was properly admitted to probate, though its due attestation, by George Ellis, Jr., were not sufficiently proved.

We therefore consider this objection untenable.

Thirdly. The attestation of the subscribing witnesses is contended to be insufficient, upon the face of the paper, to admit it to probate, there being no attestation clause to the will, and the word “Test” being the only thing prefixed to the signatures of the subscribing witnesses. This is said to be insufficient, because the statute contemplates, that the attestation should certify the facts, required to constitute a valid execution of a will. But we cannot sanction this view of the subject.

The object of the statute in requiring that a will should be “attested by the witnesses in the presence of the testator,” so far as the form of the attestation is concerned, was to identify the instrument as that signed and published by the testator, and to prevent fraud and imposition in establishing spurious wills, and at the same time, to show the persons by whom the facts necessary to establish the will could be proved, when it should be produced for probate. All that was necessary for these purposes was, that the witnesses should sign their names upon the paper in the presence of the testator, in testimony of the fact, that it was the paper signed and published by him as his will. The attestation, so far as it is required to appear by the face of the paper, is merely formal; and however full and particular in its recitals of material facts, it does not prove those facts; for that has to be done by production of the subscribing witnesses. And although it is true that the attestation implies that the witnesses had knowledge of the facts necessary to make the instrument a valid will, yet it is not necessary that a compliance with these forms should be stated in it. It is sufficient, if it appear that they signed their names as witnesses to its execution, and that they be able to state, when called to prove the will, that the requisites of the statute were observed.

Accordingly, it is the settled doctrine, that no particular form of words is necessary to constitute an attestation. 1 Jarman on Wills, 74. And although the statute expressly requires, that the attestation shall be in the presence of the testator, yet it is well settled, that that fact is not required to he stated in the attestation; and it is sufficient if it can be proved by the witnesses at the trial. Willes Rep. 1; 6 Cruise Dig. 57; Lord Rancliffe v. Parkins, 6 Dow. Par. Rep. 202; Preston on Legacies, 18. And when the death of the subscribing witnesses prevents actual proof, a compliance with the statutory requisites will be presumed, though not expressed in the memorandum signed by them. 2 Strange, 1109.

Many cases are cited by counsel to show, that in the execution of powers, required by their terms to be executed “ in the presence of witnesses,” or to be “attested by witnesses,” the attestation should show that the express terms of the power were complied with. But there is a manifest distinction between the execution of powers, and the execution of wills.

When forms are imposed in the execution of a power, they must be strictly complied with; because they are matters of arbitrary requirement, which the grantor has seen fit to impose, as conditions to the exercise of the power, and to the vesting of the rights under it. 1 Sugd. on Pow. 250. If the forms imposed, appear on the face of the execution to have been complied with, a due execution is presumed, without further proof of observance of the terms required. But not so with wills; for the attestation in such cases is made with reference to further proof to be made. The essential thing is to be done in court. Proof must there be made, that the will was executed by the testator, so as to give it validity as a will. In the one case, the attestation, when regular, proves the time required to be observed; in the other, it is a mere incipient step towards the proof of the facts required to be established.

The construction contended for, would be a wide departure from the liberal rules which have always been sanctioned by courts, in regard both to the execution and construction of wills, — rules founded on the just principle, that such instruments must, from the circumstances under which they are prepared, necessarily be frequently drawn by, and under the direction of, persons but little skilled in legal formalities. And to subject them to strict technical rules would, therefore, defeat the intentions of many persons, whose wills were really executed in accordance with the substantial rules and reasons of law. Hence, courts have always shown a disposition, in such cases, to make forms yield to substance, and to respect what parties really intended to do, unless constrained by some inflexible rule of law, or the requisitions of the statute. In the present instance, we consider the construction contended for, unsustained, both by legal rules and by general convenience.

Lastly. The appellants rely upon various circumstances connected with the will and the property of the testatrix, as affording presumptive evidence that the will was not valid. Some of these circumstances have already been incidentally noticed, and disposed of. The others will now be considered.

1. It is said, that the testatrix, and both of the subscribing witnesses, were ignorant of what was required by law, in the execution of a will; and that it cannot be presumed that they complied with forms, which they did not know to be necessary.

The probability is, that the testatrix did not know the requisites to a valid will, as she was unable to sign her name to the instrument. George Ellis, Jr., the draftsman of the will, states that he would not have signed it as a witness, if it had not been duly and properly executed, and in all things regular; but that he might have subscribed an illegal instrument; that but few men of the masses know what a legal instrument is, and that he does not know that he did. Upon this statement, it is said that he is shown to be entirely ignorant of the requisites of a will. But this appears to be an unfair view of the matter. A more just view of it appears to be, that although he thought he knew what was necessary to the valid execution of a will, yet that he might have been in error, as few men but lawyers were acquainted fully with such matters. And it appears from the manner in which the will is drawn, that its provisions are well expressed, and that he knew the formalities used in such instruments. It is signed by subscribing witnesses, as the law requires, and the circumstances of its execution, as above considered, go to show that it was properly attested. Under such circumstances, it is not just to assume, that he was ignorant of what was necessary to the valid execution of a will, and thereupon to found the presumption, that this will was not properly executed. The facts on which the presumption is attempted to be based, are not so strong in support of it as in the case of Clarke v. Dunnavant, above cited. But there is no evidence as to knowledge of George Ellis, his father, upon the subject. Yet it is assumed that he was ignorant upon the subject, from the fact that the will was drawn up by his son. This inference is certainly not warranted by the fact stated; for there might be many reasons why the father did not write the will, and still he might have been well acquainted with the forms necessary to be complied with, in the execution of a will, and have had those forms observed in this will. Eor instance, he might have been an invalid, and unable to perform the labor of writing the instrument at the time, though competent to direct it, and see that the necessary acts were done in its execution; and this is not improbable, as it appears that he died very shortly after the date of the will.

It cannot, therefore, be properly urged against the will, that the parties engaged in its execution, must be considered as too ignorant of the requisites to its valid execution, to justify the presumption that it was duly executed.

2. The long-continued possession of the appellants, adversely to the will, is said to raise a presumption against its validity. But that is an objection that goes rather to the rights of the parties as they may be affected by the Statute of Limitations, than to the validity of the will, under which one of them claims. There may be sufficient reasons, not now appearing, nor necessary to be presented upon an application for the probate of the will, why the appellee has not taken steps at an earlier period, to assert his right — such as infancy and the like. It is not improbable, that the appellee was, for a part of the time of this adverse possession, under the disability of infancy, and that such time could not be properly taken into consideration. But be that as it may (as there is no limit to the time for the probate of a will), before the fact of adverse possession could be held to create a presumption against the validity of the will, by reason of his acquiescence in the adverse title, and so as to preclude him of the right to probate the will, it should be shown that there was no impediment to the assertion of his rights, and that his acquiescence was tantamount to a disclaimer under the will, with a full knowledge of its legal character. We therefore consider this circumstance, as entitled to very little weight in the consideration of the case as it is now before us.

3. It is said that the fact that Thomas D. C. Lawrence, the appellant’s intestate, and the principal legatee in the will, purchased from the father of the appellee the slave bequeathed to the appellee in the will, shows that the beneficiaries under the will considered it void, and treated the estate as intestate, and that the circumstance is entitled to especial weight, as it shows a repudiation of the will by the party mainly entitled to its benefits, and his conduct was against his interest. But we do not think that the facts mentioned warrant the inference attempted to be drawn from it. It does not appear' that Thomas D. C. Lawrence did not claim or obtain the property bequeathed to him in the will, or that the other legacies in the will did not go according to its disposition, except that to James Lawrence, the appellee. Nor does it appear that any letters of administration were taken, upon the estate of Elizabeth Lawrence, as one of intestacy, which, in all human probability, would have been done, if the will had been considered void. The conduct of the parties, therefore, instead of showing a recognition by them of the invalidity of the will, tends decidedly to show, that they acted under its dispositions, and, therefore, that no administration was taken as upon an intestate estate. And the probability of this state of facts is-not destroyed by the fact of Thomas D. C. Lawrence’s purchase from the appellee’s father; as it is not an unusual thing for a man to purchase property from one who has not a good title, under the erroneous belief that he has the right to convey, that hypothesis is much more probable, under the circumstances appearing in this case, than that Thomas D. C. Lawrence treated the will as void, and that the distributees treated the estate as intestate.

4. Another circumstance mentioned, as raising a presumption against the execution of the will, is that it purports to dispose of real estate, and has but two subscribing witnesses to it, and this, it is said, shows that the will was incomplete, and renders it inoperative as to the entire estate.

It is a question of fact whether it was the intention of the testatrix that a paper, purporting to dispose of both real and personal estate, should operate as a disposition of one, unless it could take effect as to both. Jones & Robeson v. Kea, 4 Dev. 802.

The single circumstance mentioned would tend to show, that the parties did not know that it required three subscribing witnesses, to make a valid will of real estate; but, taken by itself, it could not justify the presumption that the will was but partly executed, with the intention afterwards to complete it, which intention was never consummated. So far, however, as the circumstances of the transaction appear by this record, the presumption attempted to be raised is clearly rebutted; for it appears by the affidavit of 1833, that the paper was signed and published by the testatrix as a complete will. And although it is insufficient to pass the real estate, it is valid as to the personalty, and to that extent only was it admitted to probate.

5. Again: it is objected that, it appearing that the testatrix was a feme covert, the presumption that she so continued must stand until removed by evidence; and there being no such evidence here, she must be considered as a feme covert, and incompetent to make a will.

The presumption of the continuing relation of husband and wife may certainly be rebutted by circumstances, and the contrary may be taken as conceded by the acts of the contesting parties. Here all the circumstances tend to show that the testatrix was a widow at the date of the will. She was living at the witness’s house at the time, apparently as a feme sole, no mention being made anywhere in the record of her husband; she undertook to dispose of property which clearly belonged to her husband, if alive, as the law then stood, which renders it highly improbable that he was then alive, and no attempt was made by the court below to show that she was then a feme covert, which, from the facility with which the fact could have been proved, and its conclusive effect against the will, must be taken as a concession by the contestants, for the purposes of this case, that the fact did not exist at the date of the will. We do not therefore feel authorized to say that the court below erred, in treating this as the will of a-feme sole.

Therefore, considering all these circumstances above relied upon, we do not think them sufficient to destroy the presumption in favor of the validity of the will. And it follows from the views above taken of the case, that the decree of the court below is correct, and should be affirmed, which is ordered accordingly.