5 Watts 399 | Pa. | 1836
The opinion of the Court was delivered by
The paper purporting to be the last will and testament of Hugh M’Kelvy appears, not only from its face, but likewise from the evidence, to have been made before the late act of assembly, passed on the subject of wills in 1833-4; though M’Kelvy is admitted to have died afterwards. It is also admitted that the execution of the instrument must be judged of by the law as it stood at the time of its execution, and not at the time of the death of the testator. In support of this latter admission, the following authorities have been cited by the counsel for the defendant in error: Amb. 550; 3 Atk. 551; 2 Id. 36; 1 Eden. 482; Pre. in Chan. 77; 1 Freem. 542; 1 Vez. 225. 33. 178; 2 Show. 16; S. C. 2 Mod. 310; 2 Freem. 466; 1 P. Wms. 97; 9 Law. Lib. containing Vorhes on Stat. 681; 2 Vez. 265; 4 Id. 555.
The only question discussed on the argument was, whether the evidence given on the trial amounted to proof, by two witnesses, of the execution of the writing by Hugh M’Kelvy as his last will and testament, in conformity to the act of 1705; so as to justify the court below in permitting it to go to the jury, to be determined by them, as a matter of fact, whether he had made and published it as such or not.
The act of 1705 “ concerning the probates of written and nuncupative wills, and for confirming devises of land,” being the only-law in force on this subject at the time the writing in question was made, required that wills in order to render them available in passing lands should be in writing and proved by two or more credible witnesses. In Eyster v. Young, 3 Yeates 515, however, it was held that circumstances might supply the want of one witness, where they go to the immediate act of disposition, so that it would not seem to be requisite that there should be literally two witnesses in every case, either of whose testimony would be sufficient to prove the execution of the will in case one witness were made so by law. Still, however, whenever there are but two witnesses called to establish the will, each, in order to do so, must be able to testify to all that would be requisite, to warrant a jury in establishing it, were the proof of one witness only sufficient in law for such purpose. This is the whole extent of the doctrine laid down in Hock v. Hock, 6 Serg. & Rawle 47, and Reynolds v. Reynolds, 16 Serg. & Rawle 82. For there is nothing decided or laid down in either of those cases going to show that a will may not be proved by circumstantial evidence, where each circumstance composing the aggregate necessary to make up the sum of proof, is testified to by at least two witnesses, though the two witnesses proving each circumstance may not be the same. It is doubtless necessary that the whole chain of circumstances should be proved by the testimony of two
In the present case the execution of the writing by H. M’Kelvy, as his last will and testament, is testified to very fully by Mr Hamilton. This, indeed, is not denied, but admitted by the counsel for the plaintiff in erroz\ But then, it is alleged, and has been strenuously argued, that neither the testimony of Isaac Walker, nor yet that of the other witnesses, taken in connection with his, is sufficient to supply the want of the testimony of a second witness. It therefore becomes necessary here to turn to the testimony. Walker testifies positively that he was called into Mr Hamilton’s office to witness a writing which Hugh M’Kelvy acknowledged was his last will and testament; and that he subscribed hjs name as a witness to it; but whether the one in question be the same or not he does not know; cannot be positive that it is; says that the signature of his name looks pretty much like his handwriting, but cannot be positive whether it is his or not; it is like it; it may be his signature; it is something like his, and the paper something similar to the one he signed; though it does not appear to be so long; does not think M’Kelvy’s signature was to the paper; does not think he put it down in his presence; looking at the paper again, he says he saw no such name to it as M’Kelvy’s appeared to be then, but did not look at it for the purpose of examining whether there was a name to it or not. Now, whether this testimony of Walker would have been sufficient to have justified the court in submitting the fact of the execution of the will to the jury, to be determined by them, in case the law had made the proof of one witness sufficient for this purpose, may be a question about which there may possibly exist some diversity of opinion. In Garrells v. Alexander, 4 Esp. Ca. 37, Lord Kenyon is reported to have left the question of the defendant’s handwriting to the jury on much less evidence than that of Walker. The witness there had never seen the defendant write, except in signing his name to the bail-bond taken in the suit; and being asked whether he believed the acceptance of the bill then in question to be the handwriting of the defendant, he said he could form no belief on the subject; but said it was like the handwriting in which the bail-bond was subscribed. He looked again on the bill, and said it was like the handwriting in which the defendant had subscribed the bail-bond; but he could not speak to any belief further than he had already done. Whereupon lord Kenyon said, he thought there was
Upon the whole, taking all the testimony together, we are inclined to think that the court was right in permitting the writing in question to be read in evidence, and submitted to the jury.
Judgment affirmed.