greatly impaired. The next morning, Wednesday, the will was read and attempted to be executed. It appears by the evidence of Samuel P. Milner, a son of Mr. Milner, whose family was provided for in the will, and who with his mother had been sitting up in the house during the previous night, that at about seven or eight o'clock, A. M., when Pine was in a very weak and miserable condition, he commenced talking to the witness." He said; they had been bothering him about his property and about a will. I could not understand him clearly. He would have to raise his voice so that I could understand him. He said; 'I will have nothing to do with it. It is nothing but dung and dross. I am going home. It may go from whence it came.' At seven o'clock he had another conversation with a religious friend and neighbour, David Berry, in which he stated "the strong evidence he felt for a better inheritance beyond the grave." His conversation was almost wholly on religious matters, and no allusion was made by him to his making a will or disposing of his property. Berry's evidence is very strong as to his total abstraction from worldly matters, and similar statements were made by Pine to Mrs. Ham and others. I attach much significance to the emphatic declarations of the deceased to Troop, Milner, Berry and others, that he had totally abandoned all interest in worldly matters, and to his utterly refraining from referring to them or to his will in all his late conversations. These matters help to explain what took place afterwards. He appears in relation to all such matters to have been perfectly passive, except in the matter of sending for Henshaw. I can hardly except the giving of the instructions to Henshaw, unsupported as it is by material evidence which appears to have been deliberately withheld. At about noon on Wednesday the two executors, Henshaw and Wallace Harris, met at Pine's house to read the will. No other persons were present during the time it was read. I think the evidence as to what took place, although somewhat contradictory, is sufficient to shew his assent to the will as it was read to him, clause by clause, and I would have no difficulty in sustaining the presumption of his understanding that to which he gave a formal assent, were it not for a very curious and significant piece of testimony which is entirely uncontradicted, and which materially affects my judgment on this part of the case.

Wallace Harris states on his re-examination, and it is expressly admitted by Henshaw, that he and Henshaw had previously agreed between themselves that the sixth clause of the will, which bequeaths one hundred dollars to repair the Methodist Church, should be read, not as stated in the will, and as it now stands there, but as if it were three hundred dollars, and the clause was read in that way and assented to by Pine without remark. We have no evidence to explain, nor can I conjecture, what object the parties had in view in this singular proceeding. It is to be presumed that there was no fraudulent intention, as none is alleged; but this undisputed fact goes a long way to confirm Harris's statement that he was "uninterested, sleepy and drowsy." Harris's obvious imprėssion was that Pine's mind was not then sufficiently vigorous and active to enable him to understand what was going on. It was contended that we might strike out the clause affected by this gross irregularity, (to apply the mildest expression,) but we cannot shut out its effect in determining the already doubtful question as to the mental condition of Mr. Pine, and its tendency to confirm his very emphatic and repeated declarations in the morning in reference to his making his will, that he had ceased to have any interest whatever in relation to his worldly affairs. If one clause was read to him without attracting his attention, how can we conclude that he understood a word of the remainder, to which, as well as to this clause, he thus formally assented?

The case is in this respect somewhat similar to that cited by Swinburne, (Walkem, 130; 1 Redfield, 131-2,) of a monk who came to a gentleman then in extremis to make his will. The monk asked the gentleman if he would give such a manor and lordship to his monastery. The gentleman answered "yea;" then, if he would give such and such estates to such and such pious uses. The gentleman answered "yea" to them all. The heir at law observing the covetousness of the monk, asked the testator if the monk was not a very knave, and he answered "yea." The will, which was set aside, might perhaps have stood had it not appeared by the last question and answer that the sick man would answer yea to every question that was put to him. So it seems to me that the omission by Pine to notice the intentional error in reading the sixth clause, shews that

the testator, when he assented to each clause, had lost the power of attending to the subject-matter before him, so as to comprehend its purport and meaning.

The instructions given by the testator are next to valueless, for want of necessary evidence to support Henshaw's statements. The reading of the will by Harris and Henshaw is at least equally useless, from the fact that Mr. Pine, whether competent or not, did not in fact understand it. Was there any subsequent intelligent assent by him to its contents?

After the reading of the will, Henshaw and Harris adjourned to dinner and met again in Pine's room at between two and three o'clock, p. m. There were present at this time the two witnesses, Peck and Pickering, the two executors, Harris and Henshaw, and Charles D. Pine, besides Mary Anne Pine, the housekeeper, who was in and out of the room. Of these, the two signatory witnesses and the two executors were examined, and they differ very much in their statements of what occurred, which are taken down with great particularity. Peck, Pickering and Harris assert the almost total want of volition on the part of Pine. He could not see even with glasses. He could not speak. He had to be held up in the bed. He was unable to hold the pen in his hand or to write his name, which was written by Harris at Peck's request, with Pine's hand resting on Harris's arm, but not touching the pen, &c. And these witnesses state, after minutely detailing the circumstances, their belief that he was not only wholly indifferent, but wholly unconscious of what he was doing. I think we can make out from the witnesses of the appellees that Pine was asked by Henshaw when the latter came into the room, if he would get up and sign his will, but they did not hear him reply. They all agree that he helped to adjust the spectacles that were procured when it was found that he could not see, and there are one or two other minute circumstances proved indicating volition; but they all very emphatically state their disbelief in his capacity to understand what he was doing, and their confidence that he did not know it was a will or who were the witnesses. Henshaw, on the contrary, says that Pine bowed his head when asked if he wished to get up and sign his will; that he said; "I can't see; I want my glasses;" that after the glasses were adjusted, partly by Pine himself, the pen was put in his hand and he made an attempt to use it.

There was a serious objection made at the argument to the evidence of Peck and Pickering that they, having witnessed the will, should not be believed when called to impugn the capacity of the testator; and reference was made to the case of Wilson v. Beddard, 12 Sim., 14, in which it was said by a Vice-Chancellor; "I have always thought that, if any attention at all ought to be paid to testimony of witnesses who deny such a solemn act to which they have attested, it ought to be the slightest possible. Perhaps the best way would be to disregard it altogether, and I confess my mind is very little affected by their evidence."

In that case the decision was wise and good, but I consider the dictum of the learned Vice-Chancellor, as given to us by the reporter, unguarded and indiscreet in its terms. I am in hopes he has been inisreported. In that case there were three witnesses to the will, one of whom was the solicitor who drew it, and his evidence was very properly taken in preference to that of the two others who denied the sanity of the testator: There was not only a competent party present with whom the witnesses could consult, but ample time and opportunity for them to do so. Here the deceased was in extremis, evidently a dying man, and rapidly sinking, and the witnesses were unskilled and without time or opportunity for consideration or consultation. My opinion is that witnesses, in many cases of emergency where there is room for doubt, are quite excusable in signing as witnesses, though they may have serious doubts of the testator's competency, which doubts on subsequent reflection and consultation may ripen into certainty one way or the other.

I think the testimony of Peck of but little consequence, because, in spite of his doubts, he proved the will in common form, and the testimony of Harris is also weakened by the fact that he took part in the original probate. But Pickering was a reliable and disinterested witness, and, in my opinion,. his testimony is of at least equal value with that of Henshaw, especially when the latter, if correct, could have been so easily strengthened by that of Charles Pine who was present and interested in sustaining the will.

But I do not rely so much on what was said and done as upon what was, by common consent, not said or done. The

burthen of proof was undoubtedly upon the appellant as soon as the two witnesses to the will had given strong prima facie evidence against it. All the circumstances attending the instructions and the reading of the will, and especially the obviously weak if not imbecile condition of the testator, called for the utmost solicitude on the part of those in charge of the will, to see that he then understood its contents. What are the admitted facts? It is doubtful if the sick man ever knew that the paper presented to him was a will. He was not plainly informed that it was a will, or that it was the paper read to him in the morning, and if he had been so informed it would have been false, for one important clause had been intentionally misread to him. He was not asked if it was his will, nor did he make any declaration or sign to that effect. His consent was not asked, nor his authority given to Harris to write his name. It is quite immaterial whether his fingers touched the pen or not. The act was Harris's, and not his, by the testimony of all the witnesses. Whatever may have been the fact as to his capacity, he seems to have been treated by common consent as if he were an insensate physical object, out of which a signature was to be extracted in order to make the document valid. I am quite sensible of the suspicion attaching to much of the evidence against the validity of the will; but the facts I have just mentioned, and upon which I mainly form my opinion, are undisputed and are worth volumes of contradictory statements.

In my opinion, very reluctantly adopted, (because I consider that Henshaw acted in good faith, and because I believe the will to be substantially what the testator had intended before he was seriously unwell,) the appeal should be dismissed on two grounds :

1st. Because the will was not signed by the testator, or at his request, and was not subsequently acknowledged by him.

2nd. Because he was mentally incompetent for its due execution and did not know that the paper before him was his will, or sufficiently understand its contents.

I think the costs should be paid out of the estate.