#### ST. JOHN’S LODGE, No. 1, WILMINGTON *vs.*H. B. CALLENDER AND AL.

Upon an issue of *devisavit vel non,*where there are no subscribing witness es to the paperpropounded as a will of real estate, there must he affirmative and direct proof as to the fact, that it was deposited with some one as a . will, or was found after the party’s death among his valuable things.

The circumstances that the party, who had been a resident of Wilmington, died abroad — that this paper writing was produced by his partner and confidential friend, also a resident of Wilmington and since dead — that the paper was sealed up and on the envelope was endorsed in the hand writing o; the deceased "copy Joseph Deans’ Will June 17th 1803 to he opened after his death by” A. B. &c. naming several; constitute no evidence of the fact so required to be established.

The declarations of the person who produced the will and who is since dead, as to the deposit being made with him, are not competent evidence.

Nor is the possession of the land, purporting to be devised, by the alleged deJ visee for thirty six years, evidence in a Court of Probate of the *factum*of the will.

One, who propounds a will for Probate cannot suffer a nonsuit, nor withdraw thepaper propounded. The proceeding in the Court is one in rare, and the Court is bound to give its sentence on the paper itself — the *res*— without regard to particular persons, but always endeavoring to give proper notice to all parties interested.

The cases of *Slade*v *Washburn,*3 Ired. 557; and *Redmond*v *Collins,*4 Dev. 437, cited and approved.

Appeal from the Superior Court of Law of New Hanover County at the Spring Term 1844, his Honor Judge Nash presiding.

This was an issue *Devisavit vel non.*The plaintiff propounded the paper writing offered in evidence as the last will and testament of Joseph Dean. The paper was, by the competent number of witnesses, duly proved to be all in the *336band writing of Joseph Dean, with his name duty signed ^le same- ^ was then proved by Captain Hartman, that he was well acquainted with Joseph Dean, that he was for-merty a merchant of and resided in the town of Wilmington,- and was in partnership with Kingsby Thurber of the said town — that in the year 1804 Joseph Dean, being in bad health, sailed in a vessel of his own for the West Indies, and that in due time the vessel returned with news of his death — that the witness received a message from Judge Wright, requesting his attendance at his office — that, upon going there, he found Judge Wright, Mr. Thurber and other persons assembled — that a packet was produced by Mr. Thurber, sealed üp, and endorsed in the hand writing of Joseph Dean, as follows: “Copy Joseph .Dean’s will, June 17th 1802, to be opened after his death by Richard Bradley, Joshua G. Wright, the master of St. John’s Lodge, Wilmington N. C. and the magistrate of police of said town”— and that all the persons so mentioned being present, the seal was broken, and the paper writing now propounded was found within the envelope, also sealed and endorsed with the same direction, also in tire hand writing of Joseph Dean, upon the envelope. The plaintiffs then offered in evidence the declarations made by Thurber at that time, as to where he had found the paper, and how it came into his possession, as a part of the transaction, it having been proved by the witness that Thurber had • been dead about twenty years. This testimony, being objected to, was rejected by the Court. The plaintiffs then offered to prove, that they had taken possession of the lot of ground, devised to them by the paper writing, soon after the death of Joseph Dean, and had been possession ever since. This testimony was also, on motion of the defendant’s counsel, rejected by the Court. In order to account for the delay in propounding the paper writing, the plaintiffs shewed, that, in the year 1839 the present defendants had brought an action of ejectment against the plaintiffs to gain the possession of the lot devised to them. The present suit was commenced in New Hanover County *337Court, In 1840, by tbe plaintiffs propounding the paper ting in that Court for probate. From the decision of that Court this present appeal was taken to the Superior Court. There were no subscribing witnesses to the will.

Upon the close of the testimony, the Court intimated to the counsel for the plaintiffs, that he should instruct the jury, that there was no testimony, upon which they could find this paper writing to be the last will and testament of Joseph Dean. The counsel however insisted there was such evidence, and evidence sufficient to authorize the jury to establish the will. The case was accordingly put to the jury. The judge in his charge observed to the jury, that, in remarking to the counsel, that he should instruct them, that there was no testimony on which they could find this paper writing to be the last will and testament of Joseph Dean, he did not intend to say there was no evidence to go to them, but he had Intended to tell them, that there was wanting a link material to make out the case — that the whole case was now submitted, and it was for them to say whether, under *the*evidence, this paper writing was the last will and testament of Joseph Dean. The Court then read to the jury the act of the General Assembly, under which the will was propounded, and, after reciting to them the testimony, proceeded to observe, that it was not sufficient for them to he satisfied, that this paper writing was all in the handwriting of Joseph Dean, and that it truly contained that disposition of his property, which he intended; but that the plaintiffs must, before they could ask them for a verdict in its favor, go further, and shew them by legal and competent testimony, that it was also, after the death of Joseph Dean, found among his valuable effects or papers, or that it had been by him deposited with some person for safe keeping. It was for them to say what evidence had been given to them to satisfy them upon either of these points — that it was not sufficient for them, as jurors, to he satisfied that a fact was so, hut that conviction must be conveyed to their minds by legal and competent testimony — and. as an illustration of *338the principle so laid down, the Judge observed, that it was a PrincÍPle that, when there was a subscribing witness to a written contract, in an action upon that contract the subscribing" "witness, if alive and within the control of the Court, must be produced. Thus if A. gave to B. his bond, and C. witnessed it, in an action on the bond C. must be produced or his absence accounted for, and A. could not recover by producing D., who swears he was present and saw B. execute it: not because his evidence rvould not be as entirely satisfactory to. the minds of the jury as that of C., but simply for the rule of law. But, again, the first clause of the Act, under which the will is propounded, says, that if the wilHs not written altogether by the deceased and his name inserted or subscribed by himself or some person by his direction, it shall still be his will, if written by his direction, and attested in his presence by at least two disinterested witnesses. The Act further requires, that, when such a will is contested, the due execution shall be proven by all the attesting witnesses if alive. Suppose a will so made to be attested by two witnesses, and, upon the trial of the *caveat,*it turns out that one of them cannot be examined for the reason, either that he is interested or is incompetent from infamy to give evidence. Now the minds of the jury might be as fully satisfied, by the testimony of the one competent witness, of all the facts necessary to constitute it the will of the deceased, as if a dozen witnesses were introduced, except as to the attestation, and yet they could not pronounce it the will of the deceased. These cases, the jury were told, were stated to them to shew, that it was not sufficient for them in this case to believe, that the will was found, after the death of Dean, among his valuable papers or effects, or had been by him deposited with Thurber or some other person; but that belief, to authorize them to find a verdict upon it, must be founded upon testimony legally competent to produce it. It was for them to say, whether such evidence had been produced before them; if so, they would find a verdict in favor of the plaintiffs ; if not, they would return a verdict for the defendants.

*339The counsell for the plaintiffs asked leave of the Court to enter a nonsuit, which was refused. The jury rendered their verdict tor the defendants. From the sentence pronounced upon this verdict,the plaintiffs appealed.

*Strange*for the plaintiffs.

*Wm. H. Haywood and Warren Winslow*for the defendants.

RuffiN, C. J.

The illustrations, which the presiding Judge found himself under the necessity of submitting to the jury, to enable them to take just views of the questions for their decision, shew very plainly, that he might, and, as we think more properly ought to have told them, that the script was not duly proved. The Act of’84, c. 225, after reciting, that the Act of the previous session of the same year required the attestation of witnesses to prevent fraud and impositions on persons in their last sickness or from their want of knowledge, and that it may be proper to make exceptions from that rule in particular cases, proceeds to enact, among other things, that where a will shall be found among the valuable papers or effects of any deceased person, or shall have been lodged in the hands of any person for safe keeping, and every part thereof is proved by three credible witnesses to be in the hand writing of the deceased person, it shall be deemed a sufficient will in law.

This seems plainly to require affirmative and direct proof as to the fact, that it -was deposited with some one as a will, or was found, after the party’s death, among his valuable things. But it is said, that the Act does not prescribe the mode or degree of proof, or the rules of evidence for establishing those facts. And it is thence inferred, that the question is to be left to the jury in each case, if there be any circumstance from which it might be supposed, that the paper had been deposited as the statute prescribes. And it is argued, that, here, the death of the party abroad, and the production of the instrument in the state it was, by his surviving partner, and confidential friend, now also dead, are cir*340cumstances of that character. But we think otherwise. Those circumstances are entirely • inconclusive of the facts, . , . . , . _ . that the script was left with any person or found m any par-^cu^ar place, and those facts must be proved, under the statute. If the circumstances enumerated, were, *per se,*to be charged in an allegation propounding these papers, the allegation could not be admitted to proof, but must be dismissed. The Act makes such deposite evidence of the publication of the particular instrument, in the place of the direct evidence of that fact by the formal execution of the instrument, the declaration by the party, that it is his will, in the presence of the witnesses, and their attestation. Therefore, as a ceremony of publication, it is indispensable that the depos-ite, or finding under the requisite circumstances, should be made to appear by such evidence, as goes to the point, and, if believed, proves it affirmatively and distinctly. That is as necessary as the shewing it to be in the hand writing of the deceased party. When it does not appear, that it was written by some other person, it is .as probable, that it might have been written by the supposed testator as by any body else. Yet it is *not*for the jury to say *arbitrarily, that it*was written by the deceased, without any direct evidence, the one way or the other. On the contrary, the Act requires, that the hand writing shall be proved by at least three *credible*witnesses. It is true that no particular number of witnesses is prescribed, as to the deposite of the script; because the lodging or finding it is not, like hand-writing, matter of opinion, but matter of fact; about which there can be no mistake, if the witness deposing to it, possess ordinary capacity and integrity. The fact itself, however, is to be found on proof, *and not on*conjecture; and therefore it is not to be left to the jury, on evidence that makes it merely a matter of conjecture. There is no trace of this paper, until produced by Thurber sometime after the death of the party abroad. But how Thurber came by it, whether the deceased left it with him, or sent it back by the ship in which he sailed or otherwise, or whether he found it among valuable or waste papers, there are *341no means of determining. All the guards of the statute would be destroyed, by probates upon such vague and uncertain conjectures of publication.

It was then said, that the fact would have appeared by the declarations of Thurber, and that they ought, to have been admitted as a part of the *res. gestee.*But of what *res ges-tee*were those declarations a part? Slerely the production of the instrument. As to the deposite of the paper with him or his finding it among the deceased’s papers, the declarations were but the narrative of a past transaction, and not a part of one then enacted. If he could have proved those facts it is the misfortune or folly of these parties not to have offered the instrument for probate during his life, when they could have had his oath. His declarations *in pais*are not competent.

It was then insisted, that the long possession of the land devised, from 1804 to 1840, by those to whom the paper purports to devise it, and the production of the instrument by those persons, dispense with further' proof of execution, and of the capacity of the deceased, and authorize a verdict and sentence in favor of it as the party’s will. This is urged, because it is said it would be sufficient evidence of a title by devise in an ejectment. Admitting that it would be a point, on which we intimate no opinionyet it would not follow, that it was proof of the script as a will in this proceeding. To say it would, is to confound two very different things. In ejectment the question Is general on the title. In certain cases of ancient wills, where the instrument has been in the proper custody, and a long, possession consistent with It, the title Is adjudged in the devisee without proof of the will on the trial — the law deeming it out of the partyrs power t o make proof at that late day, and that those circumstances supply, as presumptions, the place of proof. If these parties could have used this Instrument in that way, they were at liberty to do so. They did not, however, think proper to run that risk, and rely on It, as an unproved will, In ejectment, but instituted this proceeding, and thereby undertook *342this instrument directly, as a will, and ask, *that*uPon such proof it shall be declared, and be recorded as the proved will of the party deceased. From the nature of the therefore, the proffered proof must be made; and it is to no purpose to say, that, in another proceeding, and upon a different state of the question, the proof would be dispensed with.

We are not sure that we understand, what was meant by the appellants’ asking leave to suffer a nonsuit, as the term is not appropriate to proceedings in a Court of Probate. But •from analogy to actions at law, we suppose thejobject was to withdraw from the Court before a verdict was rendered on the issue, *devisavit Tel non, so*as to *prevent the delivery*of a verdict, and leave the party at liberty to institute another proceeding of the same kind. If so, we think it inconsistent with a proceeding of this sort and contrary to the nature of /the jurisdiction of the Court of Probate. The instrument propounded is always brought into Court in the first instance. and the jurisdiction is *inrem.*The inquiry is whether the party deceased died testate, or intestate, and if the former, whether the script propounded be his will or a part of it, or not.

When once regularly raised, the Court must pronounce on those questions, without reference to the presence of this or that person; for the sentence, until annulled, binds all the world. If a cause is about to be heard or under a hearing, and a party in interest is not furnished with full proof and has been surprised, his course is, for cause shewn, to get an order for opening the case to farther proof and deferring the pronouncing of sentence. Though not in form, it is in substance not materially different upon an issue made up and tried in a Court of Law under our statute. It is analogous to the trial of an issue out of Chancery — only, the one is at the instance of the chancellor to satisfy his conscience, and the other the law compels the Court of Probate to make up in every case of a disputed will. From the nature of an issue, he, who alleges the affirmative, opens the case, and for that *343reason the party propounding the will is commonly spoken of as the plaintiff. But it is inaccurate; for properly speaking, there is neither plaintiff nor defendant, but both sides are equally actors in obedience to the order directing the issue. In neither case is the party in the affirmative at liber-tjr to withdraw and defeat a trial more than the party in the negative. If injustice be done on the trial, the relief is to get that finding set aside by the Court, which ordered the issue, and have it tried again. We have not known of any other course. It is especially proper in the Court of Probate. After an allegation, propounding a will has been received, until it has been decided, and the paper pronounced against, administration cannot be granted; for the jurisdiction to grant administration is only where there is an intestacy, and that is always declared before or at the granting of the letters administration, and recited in them. *Slade*v *Washburn,*3 Ired. 557.

It would be most absurd to keep the question of intestacy ever open by allowing one, setting up a pretended will, to propound and repropound it, and at his pleasure to baffle the Court and hinder sentence from being finally pronounced, by withdrawing from the Court. It cannot be so. On the contrary, the paper itself, the *res*is *sub judice,*and the Judge gives his sentence for or against it, without noticing particular persons. The Court endeavors that all parties in interest shall have notice, that theinstrument is *sub lite-,*and, that done, the sentence binds persons having such notice as much as if they were parties acting in the proceedings. *Redmond*v *Collins,*4 Dev. 437. The object of the motion in this case could not, therefore, be effected ; for if the party could be allowed to withdraw and had withdrawn from the cause, he could not have taken the instrument with him. It still remained in the custody of the law, and the Court must have proceeded to sentence against it, which would have concluded this person as it would others, while the sentence remained in force, and, further, would “ have concluded him, once act-*344jng jn the cause, from re-propounding the instrument. As ^ PaPer was only propounded by the devisee, as a will of real estate, our view is confirmed to the points arising out of • the statute. (A.)

Per Curiam, . Sentence affirmed.