Opinion
December Term, 1827.
From Beaufort.
The probate of a will, under Laws 1784, sec. 5, is good, if the place of its deposit be proved by one witness only.
EJECTMENT, tried before Donnell, J., on the last Fall Circuit. The lessors of the plaintiff claimed by descent from Thomas Yates; the defendant, as his devisee; and the only question was whether the will was properly proved. The jury returned a special verdict, the material fact of which was the probate of the will of Thomas Yates, which was as (297) follows: "Michael Hill, George Hill, and Terence Delany, being introduced to prove the same, who being duly sworn, Michael Hill declared on oath that he was well acquainted with the handwriting of Thomas Yates, deceased; that he verily believed the paper purporting to be the will and testament of said Thomas Yates was in the proper handwriting, as also the signature of said Thomas Yates; that after the death of said Thomas Yates he was at the house of said Thomas Yates, and Rachel Yates, the widow of said deceased, brought the will to him, taking it out of a chest in which he believes the deceased usually kept his valuable papers." The other two witnesses only deposed to the handwriting of the testator, and said nothing of the place in which the paper was found. If the will was sufficiently proved, the verdict was to be entered for the defendant; if not, for the lessors of the plaintiffs.
Gaston and Hogg for the lessors of the plaintiff.
Badger for the defendant.
Upon this verdict his Honor, the presiding judge, gave judgment for the defendant, from which the lessors of the plaintiff appealed.
It appears to me that the judgment given in the Superior Court upon the special verdict was correct.
The act of 1824, Rev., ch. 225, requires that the signature and handwriting of the testator should be proved by three witnesses. Here this has been done. The other circumstances attending the probate, such as with whom the will was deposited for safe-keeping, or where it was found, are left by the act to be established by the same evidence that is ordinarily used in other cases. To establish these, three witnesses are not (298) indispensable; the testimony offered was relevant and proper, and, if believed, sufficient to authorize the probate.
I therefore think the judgment of the Superior Court should be affirmed.
PER CURIAM. Judgment affirmed.