Eyster v. Young

By the Court. Thé three first objections made by the defendant’s counsel are readily disposed of. That written declarations of a man’s mind how his estate shall go after his death, made animo testandi, may amount to a will, when duly proved, cannot be doubted. If they are not sufficiently copious to embrace his whole estate, the consequence would be, that he dies intestate quoad hoc, and the same exception would lie to any will duly executed and attested, which did not contain a full disposition. Nor can there be any difficulty on the point of publication. The law requires no particular form of publication. Pow. on Dev. 81. It may be inferred from circumstances, and will have the same force to render the instrument valid, as if expressed by parol declaration. Ib. 82. The only doubt that can arise, is, whether there are two witnesses to prove the written instruments set up, or either of them. Judge Rudisill is admitted to be one full complete witness. Kagey proves the most material circumstances related by the former in detail, and all the papers must necessarily have been before the register, when his deposition was taken on the caveat. Were it necessary, Dr. Messing would supply the place of one witness. It cannot be pretended, that to establish a will, two witnesses must swear, that they were present and saw it executed. Suppose the subscribing witnesses are dead, or that one of them is *dead, their hand writing may be proved. So in England, *515] where three witnesses are indispensably necessary to a devise of lands, by the statute of frauds and perjuries. Again, suppose a will here written by .the testator himself, may not his hand be proved by two witnesses ? We hold moreover, that circumstances may supply the want of one witness, where they directly go to the immediate act of disposition. Analogous hereto was the case of Chamber’s lessee v. Weaver, tried at Nisi Prius at Carlisle, before the late Chief Justice, for the specific execution of an agreement made with the late proprietary, Thomas Penn. There the rule in chancery was admitted, that if the fact on which the equity of a bill arises, is denied by the answer, and the equity is proved but by one witness for the plaintiff, he can never have a decree, if it rests on the oath of the defendant against one witness, and no more. The court compared the case of a defendant in ejectment to a defendant in chancery ; but declared, that in both instances, the proof would be complete, if one witness swore to the fact directly, and a variety of circumstances were adduced from which the same fact would naturally be in [515] ferred. Here the instructions are most to be relied on, as taken immediately from the mouth of Eyster. The formal writing differs from it in some degree. Two writings made immediately after each other, with different dispositions, cannot stand together as the last will of the testator, and the formal instrument must give way to the notes, under the circumstances of this case. We think the latter sufficiently proved under our act of assembly. Cited in 6 S. & R. 455; 16 S. & R. 86; 1 Watts 463; 8 W. & S. 295. Messrs. Hopkins and W. Ross, pro quer. Messrs. Duncan and Bowie, pro def. The jury found their verdict accordingly.