When, after hearing counsel in support of the motion, the court was of opinion that there should be a new trial.
As the statute expressly requires, that there should be three witnesses to every will to pass lands j consequently, they should be produced, if alive, or within the jurisdiction of the court; if not, then their hand-writings should be proved ; for if only the hand-writings of two of them are proved, it does not come up to the meaning and intent of the statute ; for the name of the third witness, for aught that appears to the court, may have been forged ; in which case, it Would only be witnessed by two witnesses, which is not an execution of a will according to the requisitions of the statute, which requires three witnesses j though one credible witness may prove the signatures of all the three witnesses, as was determinecl in the case of Hopkins and De Graffen-reid.
Rule for new trial made absolute. Present, Watties, Bay, Johnson, Trezevant, and , J3&EVARD.