#### THOMAS BELL *vs.*WILLIAM CLARK & AL.

In an Issue of *devisavit vel non*where the subscribing witnesses to the supposed will disagree as to the capacity of the supposed testator, other proof may he given as to that fact and the jury must decide upon the whole evidence.

The cases of *Crowell*v. *Kirk,*3 Dev. 355, *Holloway*v. *Lawrence,*1 Hawk. *49,*and *Clary*v. *Clary, 2*Ired. 78, cited and approved.

Appeal from the Superior Court of Law of Chatham County, at the Fall Term, 1848, his Honor Judge Cald. well presiding.

This was an issue of *devisavit vel non,*as to an instrument dated November 28th, 1843, and propounded as the will of Elijah Bell. It had two subscribing witnesses, and they were both examined. One of them, Lassiter, deposed that he was sent for by the deceased to write his will, but that he was unable to do so, because he had the rheumatism, and that the deceased then requested his brother, Thomas Bell, to write it and he did so: that he, the witness, was present when the will was written, and thought the testator had understanding and capacity to make a will: that he was, however, drinking during the time, and became a good deal intoxicated, but that he knew what he was doing, and dictated the dispositions of *240property contained in the will: that after it was written it was read over to the deceased and approved and executed by him, and at his request then attested by himself and the other witness: that the deceased then handed the paper to this witness to keep, and that he kept it in his possession until April 1847, when one Farrar brought him a message from the deceased, requesting him to carry the will to him: that he accordingly did so, and that the deceased asked that it should be read to him, which the witness did in the presence of Farrar : and that the deceased then said he was satisfied with it, and directed that it should be put into his desk, which was done, and that it was found there upon the death of the party in June following.

The other subscribing witness, Neal, deposed, that on the day the will bears date, he went to the house of the deceased for the purpose of collecting money from him, as a constable, and the deceased requested him to witness a paper, which he acknowledged ; and that he did so without knowing the character of the paper, though he suspected that it was a will; and that Thomas Bell and the witness were present. Pie further stated, that the deceased was drinking at the time and considerably in. toxicated, and in his opinion was not capable of transacting business generally.

• Farrar testified, that he was a neighbour of the deceased, and that in April 1847, the deceased was sick and sent for him, and that he went and stayed with him two or three days ; that the deceased was then perfectly sober, not having drank any spirits for several weeks : that he requested the witness to call on Lassiter and ask him. to bring him his will; and that he did so and Lassiter immediately brought it: that it was then read by Lassi-ter to the deceased in the presence of the witness, and he said it was his will and that he was satisfied with it, and directed that it should be put into his desk ; that the *241deceased was then of sound mind, and died in June thereafter.

A physician deposed, that he attended the deceased six or seven days before he died : that he was then rational, and told over to him the contents of his will, which corresponded with it, when he heard it read after his death.

Another witness stated, that he lived with the deceased in 1844; when drinking, he frequently spoke of his will, and told the witness its contents and they corresponded with *the*will as read on the trial.

Another witness deposed, that the deceased told him. before the will was made, that he intended making one, and that about three weeks after it was made, the deceased told over its provisions to him, and that he was rational at the time of those conversations.

The deceased was unmarried and had no children, and, after giving away parts of his property to several collateral relations, he gave the bulk of it to his brother, Thomas Bell, whom he made residuary legatee and executor, and who is the propounder.

The counsel lor the caveators contended, that unless both of the subscribing witnesses testified to the capacity of the deceased, the paper was not well proved ; and that the subsequent declarations and conduct of the deceased were not sufficient, within the provision of the statute requiring two witnesses to a will. But the Court was of a different opinion, and instructed the jury, that if they found upon the whole evidence, that the deceased was of sound mind and memory at the time he executed the paper, they ought to find for the paper as a good will. The jury gave a verdict in favor of the will; and from the judgment accordingly the caveators appealed.

*McRae,*for the plaintiff.

*242
      *Waddell, J H. Bryan*and *J. H. Haughton,*for the defendants,

who relied upon the following authorities, *Blount v. Patton,*2 Hawks. 239, *Ragland*v. *Huntingdon,*1 Ired. 561, and *Bacon's Abridg.*5 Vol. 510.

Ruffin, C. J.

The Court thinks that the judgment ought to be affirmed. The law makes two subscribing witnesses to a will indispensable to its formal execution. But its validity does not depend solely upon the testimony of those witnesses. If their memory fail, so that they forget their attestation, or they be so wanting in integrity as wilfully to deny it, the will ought not to be lost, but its due execution and attestation should be found on other credible evidence. The leading case on ihis point is that of *Lowe*v. *Joliffe,*1 Bl. Rep. 365 ; which was a remarkable one, and fully establishes this position. It has never, we believe, been questioned, but has been always spoken of with approbation. In *Jackson*v. Christman, 4 Wend. 277, it was laid down as undoubted law, that if the subscribing witnesses all swear, that the will was not duly executed, yet it may be supported by other witnesses or circumstances. In this Court *Lowe*v. *Joliffe*has *been*always *understood to be law. Crowell*v. *Kirk,*3 Dev. 355. For, although the law requires all the witnesses to be called, if within the jurisdiction, it would be most unreasonable to conclude the party calling them, as to the execution of a will more than in respect to any other instrument. The obligee must call the subscribing witness to a bond; but as Ins testimony, that it was executed, does not conclusively prove it, so his denial of his attestation or of the execution by the ob-ligor does not absolutely *destroy it,*but the parties may give other evidence, that it was or was *not duly*executed. *Holloway*v. Lawrence, I Hawks. 49. 1 *Phil. Ev.*475, and the cases cited. The same reason applies to a will with even more force. As was said in *243
      *Crowell*v. *Kirk,*the subscribing witness to a will is rather the witness of the law than of the party calling him, and therefore the party is not bound to take his testimony as true, but ought to be at liberty to contradict and discredit him. it is impossible the Legislature should mean, that one of the most solemn acts of a man’s life should be defeated by the perjury of one man, or, indeed, any number of men ; and much less by his defect of memory or of a discrimination to judge correctly of the party’s strength of understanding. For as it is in respect of the faet of execution, so it must be in respect to the capacity of the party deceased, whether the defect be alleged to arise from insanity or the less permanent cause of intoxication. The jury are not confined to the opinions given by the subscribing witnesses on that point, nor to the facts on which they say they formed their opinions, but may take their judgment from other sources on which they rely more. Here the subscribing witnesses concurred in the facts, which go to make up what is called the execution ; but they differed as to the degree of intoxication and of its effects on the party’s mind and memory. The weight dye to, their respective opinions must depend on their intelligence and the opportunities they had of knowing how far the party’s faculties were ordinarily overcome by intoxication, and, particularly, the actual effects at the time of executing this instrument. Perhaps the jury might well have decided as they did, on the comparison in those respects of the two witnesses. But, at all events, when they thus differed, it must have been proper to let the jury see by other means, that in fact the party had a disposing memory and knew what he was about, and that he was only fulfilling a previous promise ; and that of what he did, he was so cop-scious and had such a perfect recollection, that he was able at different times for several years afterwards, both when sober and when drinking, to recite correctly the *244provisions of the paper. It is not uncommon that subscribing witnesses should not agree entirely in opinion as to the capacity of the party deceased, or as to the facts upon which they found their opinion ; and in such cases it is certainly reasonable, that either side should show, either by collateral circumstances or by direct proof, that one of them is more credible than the other, or that one of them is mistaken in his facts and the other not. *Clary*v. *Clary, 2 Ire.*78.

Per Curiam. Judgment affirmed.