The opinion of the court was delivered, January 7th 1868, by
Thompson, C. J.Disqualification by proceedings at law for performing ordinary lawful acts, is a deprivation of individual rights, and in order to have effect must be complete. The instance before us illustrates this idea perfectly. The testator, Alexander Leckey, was, in 1829, declared an habitual drunkard; but his committee neither gave bond nor took charge of his property, and from that day until the day of his death, a period of thirty-five years, he managed his own affairs in his own way. This was sufficient and more than sufficient to raise a presumption of abandonment of the proceedings, and that they were discharged. They were primá facie evidence of nothing. Thirteen years, in Bixler v. Gilleland, 4 Barr 156, in which nothing had been done under the decree that the party was an habitual drunkard, was thought by the judge who delivered the opinion of this court, to be sufficient *373to raise the presumption that his family and friends were satisfied that no committee was needed. It is a proceeding for their protection ; and if they do nothing under the inquest, the fair presumption, especially after the lapse of more than twenty years, is, that the lunatic is restored, or the drunkard reformed.
But even if this were not so, there is no case in which the finding of the inquest has ever been held to be more than primá facie evidence of want of testamentary capacity. The effect of the inquest is to shift the burthen of proof to the party asserting capacity, instead of where it would otherwise lie, on the party alleging incapacity. There is a great difference in allowing its ejfect on a contract which the law holds void by reason of it, while it exists in force, and where its operation is simply to establish a condition of mind. It seems to me it may well have more force in the one case than the other. Be this as it may, however, the learned judge gave all the effect that the inquisition was entitled to in any circumstances.
There was not a particle of evidence that the testator was a drunkard when the will was made, and the plaintiffs having the affirmative, proved he was not, but had been a reformed man and a member of a church, for twelve or fourteen years anterior thereto.
The proof by the subscribing witnesses was abundant. They both testified to subscribing the will in the testator’s presence and at his request, and that he declared that it was his last will. They could not recollect that he signed it in their presence. The proof was enough without this: Loy v. Kennedy, 1 W. & S. 396. Proof of attestation proves the will, although the witnesses may have forgotten all about the circumstances: McKee v. White, 14 Wright 360. Proof of handwriting, if the witnesses be dead, out of the country, insane, infamous or interested, is sufficient: 6 Barr 409 ; 1 Jones 498 ; 5 Harris 60 ; 6 Casey 218.
The testimony of Cunningham, proving the signing of the will by the testator in the presence of the subscribing witnesses, did the defendants no harm even if he had been incompetent. But he was not. The Act of 27th March 1865 made him competent, if he was not before, which we need not decide. He was not a party to any case pending to test the validity of this will, until the 8th of September 1865, when the issue was ordered in the form it stood at the trial, by the Common Pleas. The precipe of the register directed the issue to be joined between Elizabeth Baird and Mary Fogle, on the one part, and Alexander Leckey et al. on the other. On the 8th of September 1865, however, the Common Pleas changed this, and substituted the executors, Cunningham and Higginbotham, as plaintiffs, and this wras Cunningham’s first appearance on the record as a party, and he was at that time *374clearly competent, if not before, having no personal interest in the controversy.
The court committed no error in that portion of the charge assigned for error, and none in the record that we can discover, and the
Judgment is affirmed.