By the Court,
Sutherland, J.The limitation over in the fourth clause of the will of George Adam Bowman is good and effectual by way of an executory devise ; and Johannes, one of the devisees, having died without heirs, his share of the estate vested in his surviving brothers in fee. This limitation is almost in the very words used by the testator in the *282case of Jackson v, Staats. (11 Johns. R. 338,) where it was held a good executory devise. The same point was adjudged in Fosdick v. Cornell, (1 Johns. R. 444,) and Moffat v. Strong, (10 Johns. R. 13,) and has been re-considered and Anally put at rest in Jackson v. Anderson, (16 Johns. R. 382,) Lion v. Burtis, (20 Johns. R. 483,) Wilkes v. Lion, (2 Cowen, 333,) and Jackson v. Thompson, (6 Cowen, 180.).
2. I am inclined to think the will was properly admitted in evidence as an ancient will without proof of its execution, although one of the subscribing witnesses was shewn to have been still alive and within the jurisdiction of the court. The will was executed in 1785, and the testator died in July, 1787. The cause was tried in 1828, and it was clearly proved that the lands devised by the will had, ever since the death of the testator, been held under the will and according to its provisions. The will therefore was more than 40 years of age, with a corresponding possession during the whole period. It is not denied, if the attestation o.f the witnesses had stated every thing requisite to a complete and valid execution of the will, that it might have been read as an ancient will without further proof. (2 Esp. Rep. 665. 1 Phil. Ev. 408, 441. 4 T. R. 707, 709. 6 Cowen, 202. 3 Johns. Cas. 283. 3 Johns. R. 292. 6 Binney, 435.)
The attestation does not state that the witnesses subscribed their names in the presence of the testator. Although it is usual and proper to insert that fact in the attestation, it is not absolutely necessary, and the omission will not conclude the jury from finding that the will was so subscribed. (Prics v. Smith, Wills, 1. Croft v. Pawlet, 2 Strange, 1109. Hand v. James, 2 Comyn’s R. 530. 4 Taunt. 217. Bull. N. P. 264. 1 Phil. Ev. 438, 440.) It is a question for the consideration of the jury, to be determined upon the evidence ; and if the witness had been produced, and had been unable to recollect any of the circumstances attending the execution of the will, the jury would notwithstanding have been bound to find in favor of its due execution. If the subscribing witnesses all swear that the will was not duly executed, the devisee may notwithstanding go into circumstantial evidence to prove its due execution; (Bull. N. P, 264; *283Strange, 1026, 1096; Lowe v. Joliffe, 1 Black. Rep. 365;) and what circumstances would justify a stronger presumption in favor of the validity of a will than the fact that the devisees, who had all the means of knowledge in their power, treated it as a valid will, entered upon and divided the estate according to its provisions, and continued so to hold and enjoy their respective portions for more than 40 years ?
This being a verdict subject to the opinion of the court, the court are authorized to draw the same conclusions which the jury would have been justified in drawing from the evidence ; and if they would have been justified in finding in favor of the will, even if the witness had been produced and had sworn that it was not subscribed by the witnesses in the presence of the testator, the fact may be considered as found by the jury.
But I am inclined to think the objection at the trial was not sufficiently specific to raise this question. The reading of the will was objected to on the ground that one of the subscribing witnesses was still living and ought to be produced. No allusion was made, in corroboration of this objection, to the fact that the attestation was defective. The objection, independently of that fact, was clearly unfounded. The witness may have been in court, and if the substantial ground of the objection had been stated, the plaintiff might voluntarily have produced him, or the judge have compelled his production.
3. The bond of the 19th September, 1791, executed by the six brothers, binding themselves each in the penal sum of $500, to abide by the parol partition which had been made between them, was not properly proved, and should not have been read in evidence. The subscribing witness, Frederick Bowman, should have been produced, or his absence accounted for. There was no evidence of his death, or of his absence from the state. The proof of the hand writing of the other witness who was dead, was not, under such circumstances, sufficient. It was not shewn that Frederick Bowman, the witness, was one of the obligors. We are not authorized to say the obligor and the witness was the same *284person from the identity of the name. If the fact had appeared¡ j am not prepared to say he would not have been a competent witness to prove the execution of the bond, comas ^ does, collaterally in question between other persons.
4. But, excluding tins bond, what is the effect upon the rights of the defendant of the parol partition made between the brothers soon after the death of their father in 1787, and according to which they, or their grantees, have held from that time to the present. Johannes, who sold the share which was allotted to him to the defendant, died in 1827, without heirs; and the question arises, whether the surviving brothers, who were parties to this partition, can now deny that Johannes had an absolute estate in fee in his portion, and claim their respective shares of the same as his survivors under the will. The partition was of such interest or estate only, as the brothers took under the will of their father. If the will gave them an absolute estate in fee, then the effect of the partition was to sever the tenancy in common in the portion allowed to each, and to give to each an exclusive estate in fee in that portion. But if they took under the will only a conditional fee, or an estate for life, the partition did not enlarge the estate, but merely severed tKe tenancy or possession during its continuance: and even if releases between the brothers were to be presumed, the presumption would be (that they were made in accordance with the pro-' visions of the will, and did not enlarge the estate to which they were respectively entitled under the will.
Adam, Christopher, and Honnical Bowman are the only surviving sons. ■ When Frederick and Yerry died does not appear, nor whether they left issue ; and as nothing is said, either in the case or the argument, of counsel on that point, the fair conclusion is that they left issue, and that J ohannes acquired no additional interest in the premises by their death.
The lessor of the plaintiff is therefore entitled, as one of the three survivors to Johannes, to recover an undivided third part of the premises which the defendant purchased from Johannes.