If any one is curious to see how the question is obscured' and confounded by conflicting decisions in different States, under different statutes and different rules of practice, he may consult 1 Redfield on Wills, § 4, and 1 Greenleafs Ev. § 77, and the cases there cited.
AVe all knоw that sanity is the natural and usual condition of the mind, and therefore every man is presumed to-be sane. Wood v. Sawyer, Phil. 251. Admitting that to bo the general rule, it is insisted that an exception prevails in the probate of wills. Let us see if that is so in this State.
*404 “ No last will or- testament shall be good or sufficient in law * * * unless such last will shall have been written in the testator’s life time, and signed by him or by some other person in his presence аnd by his direction,v and subscribed in his presence by two witnesses at least, no one of whom shall be interested in the devise or bequest of the estate.” Bat. Rev., chap. 119, § 1. That is all that is required by the statute.
Sо, as to deeds, we have the following ; “ No conveyance ■of land shall be good and available in law, unless the same shall be acknowledged by the grantor, or proved on oath by onе.or more witnesses,” &c., Bat. Rev., ch. 35, § 1.
Now it will be seen that so .far as the qualifications of the testator in a will, and the grantor in a deed are concerned, there is not the slightest difference. Nothing is said about thе sanity, or insanity, or capacity, in either.
We would not be excused for citing authority or using argument tо show that wheu a deed is to be proved, all that is necessary is to prove its formal execution. And if incapacity, fraud or other fault is alleged, it must be proved by him who alleges it.
There is, however, a difference in the formal probate of a ■deed for registration, and the formal probate of a will. A deed is proved by witnesses or acknowledged by the grantor for registration, for presеrvation and for notice, as a substitute for livery of seizin. But the formal proof of a will amounts to more than that. The Judge of Probate is authorized to take probate of a will in common form without notifying the persons interested ; and to qualify an executor and grant letters testamentary and to settle and distribute the estate among creditors and devisees and legatees. He is supposed to aсt for all parties, and the proceeding is inrem. He is expected to make such general inquiries as will protect the interests of. all persons interested, and as such persons would make, if thеy were present, and as will *405 satisfy his own mind and conscience. And so he is required to write down the proof which he takes, and file it. And as a guide for him a formula of the oath of a subscribing witness is containеd in the chapter on oaths, just as the-form of an executor’s oath is. given. But the oath is not essеntial to the validity of the will, nor to its probate, either in common form or in solemn form. And the will may be proved although the witness be absent or dead, or where they swear directly the reverse of thе prescribed oath. And at any rate the prescribed oath is intended exclusively for probates in common form, and is never used on the trial of an issue dcvisavit vel non.
When the Probate Judge takes probate of a will in common form, when there are no parties present to look after their intеrests, and he has the interests of all in his hands, it is just and proper that he should satisfy himself, not only of the formаl execution of the will, but of the capacity of the testator, because the law attаches great solemnity to his action, and makes his record of probate conclusive as to all the world, until it shall be vacated by a competent tribunal. Bat. Rev. ch. 119, § 15.
But when the parties interested come forward and make an issue, and go before a jury to try the validity of the will, it takes рrecisely the same form, and is governed by the same rules as the trial of the validity of a deed, or any other instrument. And its formal execution being proved by the propounder as required by the statutе, supra, whatever is alleged by the caveator in derogation, he must prove.
Most of the сonfusion and conflict of decisions upon the question has grown out of the fact, that the distinction between probate in common form and the trial of an issue devisavit vel non before a jury has not been observed.
*406
No. The burden of proving the formal execution is on the propounder; and where there are severаl issues and the •affirmative of any one of them is on the plaintiff, he begins and concludes.
McRae
v. Lawrence,
How far the moral debasement of the testator was
evidence
■of insanity wаs proper for the consideration of the jury, and they had the benefit of all the evidencе with proper instructions ; and they found that it was not insanity. Moral debasement is unquestionably not necessarily, and of itself, insanity. Eor it is a lamentable fact that the grossest immorality and considerable intelligence are found together.
State
v. Brandon,
There is no error. This will be certified.
Per CuRIAm. Judgment affirmed.