And if all establish the validity of the will.(e) So that if the two other

the witness

the devisee

es deny their witnesses be called by the heir, and even refuse to verify their hands, still attestation, still the proof of their hand-writing will be enough, may go into if one of the three can prove the other circumstances of the circumstan- execution. And, indeed, it has been held, that if they all swear ces to prove the due exe- that the will was not duly executed, the devisee may yet go cution of the into circumstances to prove the due execution. This was so

will.

* [440] Whether the

ceived a

tion.

ruled, as it appears(ƒ) in Lord Chief Justice Pratt's time, in a case of Pike v. Badmering, on a trial at bar, where the three subscribing witnesses to a will were called and denied their hands. The court permitted the plaintiff to contradict that evidence, and he supported the will against such testimony.

*It appears, that with the greatest reason the evidence of subevidence of scribing witnesses against their own attestation has always been the subscrib- received, if received, with the utmost reluctance; and the ing witnesses can be re- courts have, on the other hand, shown an alacrity in admitting counter-testimony to establish the will against such suspicious gainst their own attesta- and discordant depositions. In Lowe v. Jolliffe,(g) which was tried at bar, upon an issue of devisavit vel non out of Chancery, the three subscribing witnesses to the testator's will, and the two surviving witnesses to the codicil, and a dozen servants of the testator, all swore him to be utterly incapable of making a will, or of transacting any other business, at the time of making his supposed will and codicil, or at any intermediate time. But this evidence was encountered by the depositions of several of the nobility and principal gentry of the county where the testator resided, who had frequently and familiarly conversed with him, during the whole period, and some on the very day on which the will was made; and also of two eminent physicians who attended him, and who all swore to his entire sanity and more than ordinary intellectual vigour.

The counsel for the plaintiff also examined to the like purpose the attorney, a person of unblemished reputation, who drew the will; and read the deposition of the attorney, by whom the codicil was drawn and witnessed, (he being dead, and his testimony perpetuated in chancery) who spoke very circumstantially to the very sound understanding of the testator, and his prudent

(e) Gilb. Eject. Sect. 8. Holt Rep. 742. Dayrell v. Glascock (f) Strange 1096. (g) 1 Blackst. 365, 416.

and cautious conduct, in dictating the contents of his codicil. Upon the whole, it appeared to be a very black conspiracy, to set aside the will, without any foundation whatsoever; the defendant's witnesses being so materially contradicted, and some of them so contradicting themselves, that the jury, after a trial of fifteen hours, brought in a verdict for the plaintiff, to establish the validity of the will and codicil, after an absence of five minutes. Lord Mansfield then declared himself fully persuaded, that all the defendant's witnesses, except one, being nine- *[441] teen in number, were grossly and wilfully perjured; and called for the subscribing witnesses, in order to have committed them in court, but they had withdrawn themselves. However, a prosecution of some of them for perjury was strongly recommended by the court. And the three testamentary witnesses were afterwards convicted, and sentenced each of them to be imprisoned for six months, to stand twice in the pillory, with a paper on their heads, denoting their crime, once at Westminster Hall Gate, and once at Charing Cross, and to be transported for seven years.

We observed that, however the testimony of these subscribing witnesses against their own attestation was ultimately discredited, no doubt was entertained of their competency; as was remarked by the late Lord Chief Justice Kenyon, in commenting upon this case, in Bent v. Baker,(161) who entirely approved of Mr. Justice Buller's distinction in this respect between negotiable and other instruments. So that the observation of Mr. Justice Yates, in the case of Alexander v. Clayton,(h) viz. that "the witnesses ought not to have been admitted to give evidence against their own attestation," seems to have been too strong for the present doctrine, or perhaps incorrectly stated by the reporter.

It is one thing to offer testimony to destroy the validity of an instrument attested by one's own signature and subscription, and another to deny the fact of one's own attestation. Lowe

(h) Burr. 2224.

(161) 3 T. R. 34; and see the reasons for this distinction in Mr. J. Buller's opinion, pronounced by him in the same case.

v. Jolliffe, as above cited, is an example of the admissibility of the former species of testimony as well as of its defeat. It *[ 443] is plain upon principles that a man must be admitted to deny

in Walton v.

Shelly.

what appears to be his own attestation; for to exclude him on a ground of inconsistency and contradiction, is to take for granted against him what is itself a primary object of proof. But it is equally clear, that his denial may be discredited and overthrown by the counter-testimony of the other witnesses, and that the will may be established against such a denial. Thus in the case of Alexander v. Clayton, mentioned above, Mr. Justice Yates observed, that there were many cases where one of the witnesses had supported a will, by swearing that the other two had attested, though they both denied it. And upon the same occasion it was said by Lord Mansfield, that "he had known several cases, both upon bonds and wills, where the attestation of witnesses had been supported by the evidence of the other witness, against that of the attesting witnesses who had denied their own attestation. It would be, added his Lordship, of terrible consequence, if witnesses to wills were to be tampered with to deny their own attestation."

Of the doc- Thus, therefore, the law appears to be well settled and distrine laid criminated upon these important points of evidence; and it is down generally by Lord to be observed, that the present consideration is confined to the Mansfield, case of subscribing witnesses, and that therefore there is nothing in what has been stated, or produced, which contradicts the maxim of law, as it was recognised or decided upon in Walton and others v. Shelly,(i) that no man shall be suffered to give evidence to invalidate his own instrument; nor does it seem that Lord Mansfield, in pronouncing his judgment in that case, laid down the rule with greater latitude than accords with the settled distinction, as to the testimony of subscribing witnesses; above adverted to. "What strikes me, said his Lordship, is the rule of law, founded upon public policy, which I take to be this that no PARTY who has signed a paper or deed, shall ever be permitted to give testimony to invalidate that instrument which he has so *signed." Now it is plain, that a subscribing witness to a deed or will, is in neither case, by force of such subscription, a PARTY to the instrument.

* [ 443]

(i) 1 T. R. 296.

tion between

considera

tiable instruments and oinstru

ments..

It is true, indeed, that the admission of a subscribing wit- A distincness to a will to invalidate that instrument, forms a stronger the attestacase than where such witness comes to destroy the validity of tion of wills and deeds, in a deed which he has attested, since, in the latter instance, he respect to the attested only the execution, and not the intrinsic or general point under validity of the instrument, but in the former, the testamentary tion. capacity of the testator, as well as his formal execution, is verified by the subscription of the witness, not to mention also that such subscription is essential to the constitution and perfection of the instrument itself, so that in giving testimony against the validity of the will which he has attested, he comes to over throw that which he himself was actively and instrumentally concerned in establishing. It seems probable, therefore, that And of nego the consideration of these peculiarities, characterising the nature of the attestation of wills, suggested to Lord Kenyon a founda- ther tion for the resemblance, which, in the case of Adams v. Lingard,(k) his Lordship appeared to think there existed between the case of an indorsor of a bill and a subscribing witness to a will, as to the admissibility of their evidence to overthrow the instrument to which they had given credit by their signature. In this case, which was that of an indorsor of a bill, the late Chief Justice said, that he wished the point to be settled in the House of Lords, being then of opinion, that the indorsor was a witness proper to be heard, and other judges being of a contrary opinion. He then mentioned a case which was before Sir Joseph Jekyll, many years before, and another, which had been decided since, meaning that of Lowe v. Jolliffe, above stated, wherein his Lordship said, it had been determined at a trial at bar, that three subscribing witnesses to an instrument might be permitted to deny the validity of it. But when the question came before tlfe court on a motion for a new trial (his Lordship still adhering to his former *opinion) it was said by Buller, J. that "the case before them was very different from that of witnesses to a will. The indorsor had passed that negotiable instrument to the plaintiff as a good and valid security, and it would be attended with consequences most injurious to society, if these securities might be cut down by the persons passing them; it was only for two men to conspire together to cheat

() Peake, Ni. Pr. Ca. 117.

*[444]

will of lands

that all the

all the world." It is remarkable, that in the much considered case of Bent v. Baker, which was determined three years before that of Adams v. Lingard, Lord Kenyon expressed his entire acquiescence in the distinction as to this point, between negotiable instruments, and deeds and wills.

Of the proof The reader has been shown above, that the testimony of one to establish a of the three witnesses is enough to prove a will of lands, in a in courts of court of common law. He will find the same rule of evidence equity. laid down in early cases, with respect to the mode of establishing a will in the courts of equity. Thus in the case of Longford v. Eyre,() Lord Macclesfield makes the following observation: "The proper way of examining a witness to prove a will as to lands, is, that the witness should not only prove the executing the will by the testator, and his own subscribing it in the presence of the testator, but likewise, that the rest of the witnesses subscribed their names in the presence of the testator; and then one witness proves the full execution of the will, since he proves that the testator executed it, and likewise, that the three witThe settled nesses subscribed it in his presence. But in the case of Townrule now is, send v. Ives,(m) which came on about twenty-five years afterwitnesses, if wards in the Court of Chancery, where the bill was preferred ing, must by the legatees, whose legacies were charged on the real estate, be examined. to have the will established, the rule was peremptorily laid down, that ALL the witnesses, if living, must be examined, to prove a will of lands. Thus, also, Lord Camden, in the above cited case of Hindon v. Kersey, in speaking first of the method *[ 445] of proof in a court of common law, says, one witness is sufficient to prove what all the three have attested; and though that witness must be a subscriber, yet that is owing to the ge. neral common law rule, that where a witness has subscribed an instrument, he must always be produced, because he is the best evidence. This we see in common experience; for, after the first witness has been examined, the will is always read." But the same judge speaking afterwards of the course of the Court of Chancery in this respect, expresses himself thus: "Sanity is the great fact which the witness has to speak to, when he comes to prove the attestation; and that is the true reason why a will can never be proved as an exhibit viva voce

66

() 1 P. Wms. 741. (m) 1 Wils. 1748.