death a; and no will or codicil which has been revoked can be SECTION VI. PROOF OF A WILL. In order to establish a devise of real property, the will itself Mode of proving a must be produced; an exemplification, a copy, or the probate, will. is not sufficient d. If, however, the will be lost or destroyed, or in the possession of the opposite party; upon proof of its having been in existence, and of its subsequent loss or destruction, or of the possession of the other party, and notice to them to produce it, secondary evidence of its contents is admissible, according to the ordinary course of proving a written instrument. The proper evidence in such case is, the registerbook, or ledger-book, or an examined copy; or if the absence of these be duly accounted for, parol evidence of the contents of the will may be admitted; but the probate is not admissible in evidence, without proof aliunde that it is a true copy'; a Sec. 23. b Sec. 22. • Sec. 34. B. N. P. 246. See ante, 936. But the probate or letters of administration, with the will annexed, are the only legal evidence of the will in all cases relating to personal property; per Lord Kenyon, C. J., in R. v. Netherseal, 4 T. R. 260. If the probate has been lost, an exemplification under the seal of the court, or an ex amined copy of the act book, (El- e St. Leger v. Adams, Ld. Raym. 731. B. N. P. 246. f Doe d. Ash v. Calvert, 2 Camp. 390. 2 Stark, Ev. 917. Proof of execution. A party calling a witness is not con cluded by his evidence. for the spiritual court has no authority to authenticate a will of lands ". When the will is produced, one at least of the attesting witnesses should be called to prove its execution. Where, to prove the due execution of a will, one of the three witnesses was called, who stated that he and one of the other witnesses saw the testator sign the will, but that the third witness was not then present, though the signature to the attestation was of his handwriting; Lord Denman held, that this was not sufficient, without either calling the third witness, or accounting for his absence. But though one of the witnesses is sufficient, if he can speak to all the requisites of attestation, the opposite party may examine all the witnesses. He cannot, however, insist on the other party calling them. But it is said, that on an issue out of chancery, all the witnesses ought to be called. Where, at the trial of an issue out of chancery, one of the three witnesses to the will swore to its execution, and the plaintiff in chancery afterwards brought ejectment on his own demise, as heir at law; in this action, an order of court was made, that the short-handwriter's notes of the evidence of such witnesses on the trial of the issue, as should be dead before the trial of the ejectment, should be read at the latter trial. The defendant proved the former testimony of the above mentioned witness, who was dead, from the short-handwriter's notes, and produced a will, which was identified with that proved on the trial of the issue out of chancery; held, that this was sufficient proof of the execution of the will, though another attesting witness was present at the trial of the ejectment f. Though the party who is to establish the will must produce an attesting witness, if possible, he is not concluded by his evidence; for if such witness denies his attestation, or swears that the will was not duly executed, and even if all the witnesses should deny the due execution, the will may be established by other testimony a. Where two of the attesting witnesses were dead, and the surviving witness charged them with fraud in the attestation of the will, evidence of their good character was admitted . Yet, if the character of a living witness be impeached, evidence of his good character is not admissible". If the witnesses are dead, or abroad, or if after due inquiry none of them can be found; or if no witness can be produced, except one, who is incompetent to prove the will, either from interest or otherwise, evidence of the handwriting of any such attesting witness will be sufficient d. under the new act. The statute of frauds, as we have seen, required a will to be attested by three credible witnesses. But by the recent act, an Witnesses idiot, a lunatic, or a felon, may be a good attesting witness, though such witness cannot be examined to prove the due execution of the will; for a felon, or person of unsound mind, is incompetent to give evidence in a court of justice. This innovation will obviously afford a great facility to fraud, without conferring any apparent advantage; for instance, a man, when drunk, may be prevailed upon to sign a will, or a sheet of paper, upon which a will may be subsequently written; an idiot, a lunatic, or a felon, may be afterwards persuaded to subscribe his name as an attesting witness; an instrument thus fabricated, may bear upon the face of it all the appearances of a will duly executed, and as such attesting witnesses will be incompetent to give evidence of its due execution, proof of their handwriting by another party, who may be totally ignorant of the fraud, will be sufficient. So that the party interested in defeating the will, may have no opportunity of ascertaining, either by the cross ex a Goodtitle d. Alexander v. Clayton, 4 Burr. 2224. Lowe v. Joliffe, 1 Bl. 365. Talbot v. Hodson, 7 Taunt. 251. 2 Stark. Ev. 922. Hudson's Case, Skinner, 49. b Doe v. Walker, 4 Esp. 50. Bishop of Durham t. Beaumont, 1 Camp. 207. Doe d. Reed v. Harris, 7 C. & P. 42 Stark. Ev. 923. A will thirty years old from the date proves itself, and even though it appears that one of the witnesses is alive, he need not be called, Id. Doe d. Oldham v. Walley, 8 B. & C. 22. Lord Rancliffe v. Parsons, 6 Dow. 202. Doe d. Lloyd v. Passingham, 2 C. & P. 410. See ante, 936. amination of witnesses or otherwise, under what circumstances the instrument was signed or attested. It is worthy of notice, in connection with the preceding observations, that to establish the revocation of a will by tearing or burning, there must, in general, be parol evidence of the intent with which such act was done, which can only be given by a credible witness; so that, though an incompetent witness may attest a will, which is in general the result of mature deliberation, yet he cannot give evidence of the revocation of a will by destruction, which not unfrequently proceeds from a sudden transport of passion. Prima facie evidence of a will may be rebutted by evidence of fraud; as that the supposed will is a mere fabrication, or that it was obtained by fraud, as by the substitution of a false instrument for the one which the testator really intended to executea; or that it was obtained by duress; or by proof of the incompetency of the party to make a will by reason of coverture, infancy, or the want of a sound and disposing mind Þ. Will. SECTION VII. 7 w. iv. & 1 vic. c. 26. [An Act for the Amendment of the Laws with respect to Wills.] SEC. 1, an interpretation clause, enacts, "that the word 'will,' in this act, shall extend to a testament, and to a codicil, and to an appointment by will or by writing in the nature of a will, in exercise of a power, and also to a disposition by will and testament, or devise of the custody and tuition of any child, by virtue of 12 Car. II. c. 24, or 14 & 15 Car. II. ; and the words Real estate. real estate,' shall extend to manors, advowsons, messuages, lands, tithes, rents, and hereditaments, whether freehold, customary freehold, tenant right, customary or copyhold, or of any other tenure, and whether corporeal, incorporeal, or personal, and to any undivided share thereof, and to any estate, right, or estate. interest (other than a chattel interest) therein; and the words 'personal estate,' shall extend to leasehold estates, and other Personal chattels real, and also to monies, shares of government and other funds, securities for money, (not being real estates,) debts, choses in action, rights, credits, goods, and all other property whatsoever, which by law devolves upon the executor or administrator, and to any share or interest therein; and every Number. word importing the singular number only, shall extend and be applied to several persons or things, as well as one person or thing; and every word importing the masculine gender only, Gender. shall extend and be applied to a female as well as a male." By sec. 2. the following statutes relating to wills are repealed: Statutes of wills, 32 Hen. VIII. c. 1, and 34 & 35 Hen. VIII. c. 5, 10 Car. I. sess. 2. c. 2. The statute of frauds, 29 Car. II. c. 3. ss. 5, 6, 12, 19, 20, 21, and 22; 7 W. III. c. 12; 4 & 5 Anne, c. 16. s. 14; 6 Anne, c. 10; 14 Geo. II. c. 20. s. 9; 25 Geo. II. c. 6. (except as to colonies); 25 Geo. II. c. 11; and 55 Geo. III. c. 192. All property may be disposed of by will, and copy holds with Sec. 3. enacts, "that it shall be lawful for every person to devise, bequeath, or dispose of, by his will executed in manner hereinafter required, all real estate and all personal estate which he shall be entitled to, either at law or in equity, at the time of his death, and which if not so devised, bequeathed, or disposed of would devolve upon the heir at law, or customary heir of him, or if he became entitled by descent, of his ancestor, or upon his executor or administrator; and that the power hereby comprising given shall extend to all real estate of the nature of customary freeholds customary freehold or tenant right, or customary or copyhold, notwithstanding that the testator may not have surrendered the same to the use of his will, or notwithstanding that, being entitled as heir, devisee, or otherwise to be admitted thereto, he shall not have been admitted thereto, or notwithstanding that the same, in consequence of the want of a custom to devise or surrender to the use of a will or otherwise, could not at law have been disposed of by will, if this act had not been made, or notwithstanding that the same, in consequence of there being a custom that a will, or a surrender to the use of a will, should continue in force for a limited time only, or any other special custom, could not have been disposed of by will according to the power out surrender and mittance, before ad and also such of them as cannot now be devised. |