Jackson ex dem. Le Grange v. Le Grange

Spencer, Ch. J. delivered the opinion of the Court. I am of opinion, that the will was not well proved. Quackenbush merely proved his own signature, as a witness to the execution of the will. He had lost all recollection of the facts and circumstances attending its execution. He never knew the testator, nor had he, to his recollection, seen him before that time. ' 1 consider it well settled, that on a .trial at law, where the execution of a will comes in question, the party supporting, or claiming under it, is not under the necessity of calling more than one of the subscribing witnesses, if he can prove, the execution, as that the testator signed it in the presence of the witnesses, or acknowledged his signing to 389 them, or to each of them, and that the witnesses subscribed it in his presence. But if the witness cannot prove these requisites, the other witnesses ought to be called. If they are dead, their handwriting, and the handwriting of the testator, ought to be proved ; and then it becomes a question of fact, whether, under all the circumstances, it is to be presumed that all the requisitions of the statute have been observed. (Phillip’s Evid. 383, 384. Adam’s on Eject. 267.) The death and signature of Jeremiah Lansing were proved; but it appeared, that Matthew Wendell, the other subscribing witness, was alive, and within the jurisdiction of the Court. He ought to have been called, inasmuch as Quackenhush did not prove the facts essentially necessary to the valid execution of the will. If Wendell had been called, he might have either proved or disproved these facts. If his recollection should, also, have failed him, still, if he could have proved his signature, then, on proving the signature of the testator, I should be of the opinion, that the will had been sufficiently proved to entitle it to be read. The law does not require impossibilities; and, therefore, where the will has been executed for a long period before the trial, it is not, ordinarily, to be expected that the witnesses will be able to remember all the material facts. In this respect, a will may be compared to a deed, the execution of which is denied. If the subscribing witnesses prove their signatures, though they may not be able to recollect the delivery; yet, if they declare that they never subscribed as witnesses without a due execution of a deed by the grantor, or obligor, such proof would be sufficient. So, also, if the subscribing witnesses to a will are dead, the proof of their signatures, and that of the testator, is sufficient. Prima facie, the law will intend a due execution. The will, in this ease, not being well proved, the plaintiff is entitled to judgment for one seventh part only of the premises. Judgment accordingly.