after stating the case, proceeded : The Court so •construed the Act of 1784 (Rev. Stats., Ch. 122, sections 1 and 6) as to allow wills disposing of real and personal estate to be proven in common form by one of the two necessary *413subscribing witnesses; but it was declared essential to the sufficiency of the probate, in order to pass land, that the-single witness examined should appear to have sworn that another subscribing witness, as well as himself, attested in the presence of the testator, or that some other witness should depose to the fact of signing in presence of the testator by the subscribing witness who was not sworn. Blount v. Patton, 2 Hawks, 241; Jenkins v. Jenkins, 96 N. C., 254.
Where the Probate Couit undertook to set out the proof in existence, it was fatally defective if the fact of signing in presence of the testator by the subscribing witness who was not sworn, was not made to appear, but it was held sufficient evidence of the probate of a will in common form where the Clerk certified that “ it was proved in open Court by H. G.,. a subscribing witness, and recorded,” upon the principle that all things were presumed to have been done properly, and therefore it would be taken for granted that the witness actually examined, testified that the other witness also signed in presence of the testator. Harven v. Springs, 10 Ired., 181; Mayo v. Jones, 78 N. C., 404. The right to thus set up the will in common form was said to be a temporary measure for the protection of estates (Etheridge v. Corprew, 3 Jones, 14) Randolph v. Hughes, 89 N. C., 428, as the next of kin could still demand, within a reasonable time thereafter, that such probate be recalled, and that the will be proved per testes, in solemn form, which involved necessarily the examination of all of the subscribing witnesses who were living and within the jurisdiction of the Court, and that the handwriting of such as were dead or could not be brought before the Court by its process should be proven. Ralston v. Telfair, 1 Dev. & Bat., 482; Bethell v. Moore, 2 Dev. & Bat., 311. Section 20 chapter 119 of Rev. Code made it necessary to prove wills disposing of personalty as well as those devising real estate-in same manner. Osborne v. Leak, 89 N. C., 433.
*414 The Code, § 2136, in so far as it affects the sufficiency of ■the probate in the case at bar, contains the same provision 3is to signing in presence of the testator as the section of the .Revised Statutes construed in those cases; but section 2148 provides that written wills with witnesses" must be admitted to probate only on the oath of at least two of the subscribing witnesses, if living; but when any one or more of the subscribing witnesses to said will are dead, or reside out of the State, or are insane, or otherwise incompetent to testify, then :such proof may be taken of the handwriting both of the testator and of the witness or witnesses so dead, absent, insane or ■incompetent, and also of such other circumstances as will satisfy the Clerk of the Superior Court of the genuineness and the -due executiou of such will.” The requirement that two witnesses should be examined was first enacted asa part of the Revised Code (ch. 119, sec. 15) and took effect on January 1, 1856. Jenkins v. Jenkins, supra.
The will which gives rise to this contest purports to have •been subscribed by two witnesses, both of whom had died before the filing of the caveat. The will also seems to have 'been lost or taken from the files of the Clerk before this proceeding was instituted. When it was offered for probate, in •common form, Sally F. Gooch, one of the subscribing witnesses, deposed, in so far as it is necessary for present purposes, to set forth the proof, " That she is a subscribing witness to the paper-writing now shown her, purporting to be ■the last will and testament of Ada W. Thomas, and that said Ada, in the presence of this deponent, subscribed her name at the end of said paper-writing, and which bears date •September 5, 1880; that said Ada did, at the time of sub-scribing her name, declare the said paper-writing subscribed by her to be her last will and testament, and this deponent -did thereupon subscribe her name as an attesting witness thereto, and at the request and in the presence of the said .testatrix ; and this deponent further says that at said time, *415when the said testatrix subscribed her name as aforesaid, the •said Ada W. Thomas was of sound mind and memory, of full age to execute a will and was not under any restraint, to the ■knowledge, information or belief of this deponent. Signed ■by the deponent and sworn to before the Superior Court •Clerk on the 4th of February, 1887.”
S. J. Clooch, who was not a subscribing witness, deposed as •follows: “-That J. W. Thomas, one of the subscribing witnesses to the foregoing will, is dead ; that this affiant was well .acquainted with the handwriting of said J. W. Thomas, and he verily believes that said signature is in the handwriting -of said J. W. Thomas.” Signed, &c.
This will purported to have been executed on the 5th of •■September, 1880, by Ada W. Thomas, and to devise and bequeath to her husband, R. W. Thomas, her personal property and a lot of land lying in Durham. The names of Sally F. Gooch and J. W. Thomas purported to be subscribed .as witnesses.
It is manifest, therefore, that the will was not proved as the law in force on February 4, 1887, and which is still operative, prescribes that it shall be. It is true that J. W. Thomas •died between the date of subscribing as a witness and the time when the paper was offered for probate, and the actual ■signing by the testatrix and the genuineness of the handwriting of J. W. Thomas were proved by the said S. J. Gooch, but section 2136 of The Code must be construed with section ■2148, just as the corresponding sections of the old law (Rev. •Stat., chapter 122, §§ 1 and 6) were interpreted together. While the proof in common form by only one witness is no •longer permitted by the amended law, the requirement that the will shall be subscribed in presence of the testator by ■both, still remains expressed in the very same words that were embodied in the act of 1874 (Rev. Stats., chapter 122, •| 1; Rev. Code, chapter 119, § 1; The Code, § 21236) and that were construed in University v. Blount, N. C. Term Reports, *41613; Blount v. Patton, supra, and Harven v. Springs, supra. In-order that the proofs should be sufficient to justify the Clerk in recording the paper in the book of wills, and to make such record prima facie evidence of its due execution by the testator, it was essential not only that S. J. Gooch should have deposed to the genuineness of the signature of J. W. Thomas,, but that he or Sally F. Gooch should have deposed that he “subscribed” in the presence of the testatrix. The probate being then insufficient to jus'ify the entry of the paper on the will book for the temporary, protection of the estate, till some interested party should demand proof in more solemn form, it must follow that what purported to be the proof and the will itself as entered on the book, were not competent as-evidence for any purpose whatever, and the original depositions of Sally F. Gooch and S. J. Gooch, if they had been found, would not have been competent evidence for the pro-pounders on the trial of the issue of devisavü vel non. The-paper must be proved de novo in this proceeding”in compliance with the provisions of the two sections already cited. The law requires that the Clerk shall take in writing the prescribed proofs and examinations, and shall, after recording them with the will, file them in his office. The Code, § 2149. The propounders failed to produce any witness who had ever seen the signature of Ada W. Thomas to the original will, or the signature of either of the witnesses, and would testify to-their genuineness. Indeed, the only testimony offered to show the loss of the oiiginal paper purporting to be a will was that of D. C. Mangum, who last saw it in the possession of the sole legatee and devisee, R. W. Thomas, who also was then dead. It did not appear that search had been made among the papers of R. W. Thomas for the original. Non constat but what by due diligence it might have been produced in Court.
This is not a proceeding instituted under the statute (The-Code, § 69) to establish the contents of the lost will, but an ’ attempt to make probate in solemn form of a paper-writing *417which is neither produced nor shown to have been lost. Whether it could have been restored and established by a proceeding under that section or not, and even if it is intended to be admitted that a paper in the form of that recorded on the book of wills was lost, it is certain that the propounders have failed both oh the trial and in the attempt to prove it in common form in 1887, to adduce such evidence of its execution by Ada W. Thomas as would meet the mandatory requirements of the law. The record of the special proceeding in which dower was allotted to Octavia Thomas, second wife of R. W. Thomas, and to which the caveators were parties and answered by their guardian ad litem, does not estop caveators from contesting the validity of this will. If it were conceded that they are estopped from denying her right to dower, that fact would not preclude them from contesting the execution of the will, both for the purpose of claiming the personal property, which passed into the possession of R. W. Thomas as legatee of Ada W. Thomas, and of disputing the title of the heirs or devisees of R. W. Thomas to the reversion after the life-estate, as they were not parties to the proceedings, nor entitled as privies to hold caveators bound by any admission or adjudications made therein.
The question whether the caveators, heirs at law of Ada W. Thomas, are estopped from denying the right of Octavia Thomas to dower may be raised hereafter in another action; but in this proceeding the will would not be admitted to probate on fatally defective proof, and made operative for all purposes, if it were conceded that the heirs would be estopped in an action for possession against the tenant of Octavia Thomas during her life.
As there was no competent testimony offered or evidence admitted to prove the due execution of the paper-writing, the Court very properly instructed the jury to respond to the issue in the negative.-
For the reasons given we think there was