The Subrogate.
The instrument propounded for probate is dated, and purports on its face to have been exe*292cuted, the sixth day of May, 1828, and the validity of its execution must he determined under the provisions of the statute then existing, and will not he impaired hy the changes made in the law hy the ¡Revised Statutes. (2 S. S., 3d ed., jp. 133, § 92.) It consists of a printed blank filled in writing, as to those parts which were left open for the name of the testatrix, "and her particular testamentary provisions. The attestation clause is also printed, with blanks filled in writing with the words marked in italics, viz.: “ signed, sealed, published and declared by the said Doreas M. JSemsen, as and for Tier last will and testament, in the presence of us who at Tier request, in ov/r presence, and in the presence of each other, have subscribed our names as witnesses,” “ John B. Creemer, Augustus ¡Cannier, ¥m, H. Smith.” The last two named witnesses are dead, and the first is a resident of the State of ¡New Jersey. The handwriting of the testatrix, and of all the three witnesses, has been satisfactorily proved. Were all the witnesses dead, I think the proof would be sufficient. There can be but little doubt that the word “ our,” inserted in the blank attestation clause preceding the word “presence,” was a mistake instead of the word “ her,” which to be correct it ought to have been. “ In owr presence, and in the presence of each other,” is mere tautology,' and the probability is, the word “ our” was inserted through a clerical error. Independently, however, of this view, it seems to be settled, that where all the witnesses are dead, and their handwriting and that of the testator have been proved, the due execution of the will, will be presumed from such evidence, although it does not appear from the form of attestation, that the witnesses subscribed the will in the presence of the testator. This was settled more than a hundred years ago, in Hands vs. James, where the attestation clause not showing that the witnesses signed in the presence of the testator, it was left to the jury to determine whether or not it had been so done, and the Court held, that all the witnesses being dead, and the matter being incapable of express *293proof, it would be intended that the witnesses had set their names to the will regularly. And this has been the law ever since. (Hands vs. James, Comyn's Rep., 531; Croft vs. Pawlet, 2 Stra., 1109; Brice vs. Smith, Willes, 1; Lord Rancliffe vs. Parkyns, 6 Dow., 202; Sampson vs. White, 1 McCord, 74; Hopkins vs. Albertson, 2 Bay., 484; Jackson vs. Lugnere, 5 Cowen, 221; Jackson vs. Le Grange, 19 Johns., 386; 2 Vesey, sen., 460; 5 Vesey, 411; 9 Vesey, 381; 2 Bro. C. C., 504; 1 Littell, 101; 1 Wend., 406; 11 Wend., 599.) Again, it is undoubtedly necessary, in order to sustain such a presumption, that there exist no better mode of proving the fact. Absence out of the jurisdiction of the Court, as well as death, opens proof of the handwriting of a witness, and I see no reason why the same intendment of the regularity of the attestation should not be made in one case as in the other. It is at the option of either party to take out a commission and examine the absent witness, or they may rely on the proof of handwriting, with the consequences and presumptions which flow from it. The authorities cited above fully support these positions, and I do not hesitate, therefore, to admit the will to proof, as a will of real and personal estate.