Transue v. Brown

The opinion of the court was delivered by Lewis, C. J. There was sufficient evidence of the death of the two subscribing witnesses, and of their handwriting, to admit the instrument purporting to be the will, to be read in evidence to the jury. There was also some evidence of the handwriting of the alleged testator. There is nothing in the appearance of the signature of Henry Transue which would justify the court in declaring as a matter of law, that it is a mark and not a signature. The writing avers that the testator has “ set his hand and seal to it.” The attestation certifies that it was “ signed, sealed, and published.” These circumstances raise a presumption that the name signed to the instrument was the alleged testator’s own handwriting: Barker v. McFerran, 2 Casey 211. The conduct of the parties not interested in supporting the will is not evidence in this issue against the legatees. Neither the acts nor declarations of a number of legatees, less than the whole, are evidence on an issue devisavit vel non. If rights have vested under the proceedings of the administrator, in selling or distributing the estate, this is not the proper time to protect them. We see no error in this record. Judgment affirmed,