Engles v. Bruington , 4 Yeates 344 ( 1807 )

Per Cur.

Better evidence will not be demanded than is in the party’s power to give. The Supreme Court has no power to oblige the register of wills to deliver out an original paper lodged with him for probate, to be carried into another state ; nor has it any controul over a witness out of its jurisdiction. I think it is doubted in one of the books, whether the same credit is to be given to the hand writing of a witness beyond sea, as if dead. Per Lord Hardwicks. 2 Vez. 460. But from the cases cited on the part of the plaintiffs, it appears, that where a subscribing witness to a deed or other written instrument is beyond the reach of the process of the court, his handwriting maybe proved as if he were dead. See Peake’s Rep. 100. For this is all that can reasonably be expected from the party, under such circumstances. To attempt to prove a mark to a will, would be idle and ridiculous.

Cited in 6 Pa. 412 to shew that the proof of the handwriting of a subscribing witness to a will, where the witness cannot be called, is equivalent to his oath to the signature of the testator. Cited in ly Pa. 162 in support of the decision that proof as to the genuineness of a mark to a will by a witness who was not present when it was made, but who judged only from its resemblance to other marks which he had seen the testatrix put rb other instruments, at different times, was not competent proof, by one witness, of the execution of the will; such proof was not admissible. The act of January 27, 1848, relating to last wills and testaments, validates the execution of wills by marks. Messrs. Condy and Hopkinson, pro quer. Messrs. S. Levy and Meredith, pro def.

The hand writing was fully proved; but it afterwards appeared, that the testatrix had married two husbands, viz. Edward Sennet in 1791, and William Tully in October 1796, her first husband being then living. The presumption being fortified by other proof, that her husband Sennet was in full life, when her will was made in 1801, the jury.found a verdict for the defendant, who had intermarried with a sister of the deceased.