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Loomis versus Kellogg
The opinion of the Court was delivered by
G-xbson, C. J.
The principal question has regard to the onus. The evidence is clear that the testator was'unable to write his name when the will was executed; that he rallied a little towards morning, and that he lived about a week; but there was no evidence that he was, in any part of the period, able to sign with his own hand. The will was undoubtedly executed in his last sickness ; and, in the absence of counteracting proof, the presumption is that his inability continued till his death. So far, then, as concerned want of bodily power, there was no ground of exception to the execution.
According to the decision in Vansant v. Boileau, 1 Bin. 444, Samuel A. Loomis, the executor, an attesting witness, and a party to the issue, was liable for costs and therefore incompetent. According to Snyder v. Bull, ante, p. 54, he was not interested when the will was executed; and had his testimony been indispensable to the establishment of it, we might be at a loss for a reason to deprive the legatees of the benefit of it, merely because he had voluntarily acquired a subsequent interest in the event. But it was not necessary. The presumption is that he was ready to sustain his attestation with his oath; and proof of his signature by two persons, was equivalent to proof of execution by a full witness. As, however, 'he might have contradicted it, the plaintiffs
[64] were bound to offer Mm, not only to sustain tbe presumption, but to afford the defendants the benefit of a cross-examination. But the latter had no right to waive it by having him rejected in the first place, and to have the will rejected in the second, because his attestation had not been corroborated by his oath. By having him set aside, they put him in the predicament of a witness dead or out of reach of process; and in such a case, according to Hays v. Harden, the will might be read, so far as he was concerned, on proof of his signature; and that course ought to have been pursued here.
Judgment reversed and venire de novo awarded.