Terry, C. J., concurring.

This is an action to recover possession of certain premises situated in the county of Sacramento, and the only question presented by the appeal, for determination, relates to the validity of the second codicil to the will of Eliah Grimes, under which the plaintiff claims title. In December, 1844, Grimes obtained from the then Governor of California a grant of a large tract of land, including the premises in controversy, under which he entered into possession of, and held and enjoyed the land until his death in ¡November, 1848. In April, 1845, he made a second codicil to his will, previously published, devising, by this codicil, to his nephew, Hiram Grimes, all his right, title, and interest in the land embraced in the grant. The codicil is attested by two witnesses, and purports to have been signed at the pueblo of San Francisco, before the sindico, in the absence of the two alcaldes. It was admitted, on the trial, that the testator, witnesses, and sindico, were dead, and that the signatures to the codicil were genuine.

The will and codicil took effect by the death of the testator previous to the establishment of the present State government, and the several statutes relating to wills do not apply to wills executed previous to their passage. There is no provision for the probate of such wills, and they must rest for their validity upon the laws under which they were made. This was expressly decided in relation to this same will, in the case of Grimes’ Estate v. Norris, ( 6 Cal., 624 .)

Under the Mexican law, as enforced in California, such a proceeding as the probate of an open will was unknown. The will took effect, as a conveyance, upon the death of the testator. It was valid if made in the presence of three witnesses, and even this number was not absolutely essential under the custom existing in California, and which obtained the force of positive law. By the custom which generally prevailed, as has been established in repeated instances by the most satisfactory proof, and been recognized by this Court, two witnesses were sufficient. Proof of the custom was given in this case. Similar proof was offered in Castro v. Castro, ( 6 Cal., 160 ,) and was held to obviate the objection to the will in that case, that one of the three attesting witnesses was incompetent. “ That such customs may be proved,” says the Court, “and that, when proved, they have the force of' law, has been fully settled by the decision of this Court in the case of Von Schmidt v. Huntington, ( 1 Cal. Rep., 56 ,) in which it was held that, under the Mexican law, custom is sometimes allowed to control, limit, and modify the general rules *478 of the system, and even to establish a rule in direct contravention of positive law, and to obtain the force of law, as well where there is no law, as to overturn previous law, which stands in opposition to it.” The force of the custom was recognized in Panaud v. Jones, ( 1 Cal., 488 ,) in which case the Court, per Bennett, J., says : “ The custom with regard to the execution of wills, so far as the testimony goes, appears to have prevailed generally, and for a long time, in California. It may have been the universal practice, from the first settlement of the country, and I do not feel called on to overturn all titles in this State which may depend on similar wills, because the edicts of Justinian or the laws of Toro had not been known and strictly followed by the simple and uneducated Californians.”

Aside from the consideration of the effect of the custom established by the proofs in this case, the codicil comes up to the fullest requirements of the general law in the number of its witnesses. It was made in the presence of three. The fact that Ridley signs the instrument as sindico does not the less render him a witness. He was present at its execution. It purports to have been made before him. The will in Panaud v. Jones was executed before, or rather signed by, the alcalde and two witnesses, and the Court held that the will was valid, tested by the strict rules of the Mexican or Spanish law. “ Whether an escribano,” says Bennett, J., in delivering the opinion of the Court, “ may, at the same time, act in the double capacity of escribano and. witness, is a disputed point in Spanish law, Coverubias holding in the affirmative, (Coverubias opera, Tom. 1, page 58, cap. 10, §§ 2, 3,) and Sala the negative, (2 Sala Mej., 111, § 13.) I see nothing inconsistent in his signing as a witness, and, where there is a diversity of opinion among writers of approved authority, we ought to adopt that opinion which is most in unison with the former condition of things in this country, and which will probably conduce the best to uphold and carry into execution the intention of parties. There was, then, I think, nothing in the fact of Pedro Ohivallo’s being alcalde, which disqualified him from being a witness.”

The objection to the validity of the will, from the number of its attesting witnesses, being disposed of, the inquiry arises as to the mode in which the will is to be proved. It is of no consequence what proof under the Mexican law might have been required to establish a will in case of the death of its witnesses. That law, whatever it may have been, was repealed at the first session of the Legislature; the statutes of this State relate only to wills taking effect after their passage, and no special provision is made for a case like the present. The instrument must, therefore, be established by the same proof by which instruments similarly attested are established at the common law in case of the death of their witnesses. Though the codicil depends for its valid *479 ity upon the laws under which it was made, as to its proof the general rule applies, that, in matters of evidence, as in the mode of remedy, the law of the forum must govern. (Story’s Conflict of Laws, § 558; Lewis v. San Antonio, 7 Texas, 308 .) And under our system, the rule that if the attesting witnesses and the party are dead, proof of their signatures will suffice, is as applicable to wills as to other written instruments.

Thus, in Price v. Brown, ( 1 Bradford, 291 ,) the surrogate of the county of Mew York says that “it seems to be settled, that where all the witnesses are dead, and their handwriting and that of the testator have been proved, the due execution of the will will be presumed from such evidence, although it does not appear from the form of attestation that the witnesses subscribed the will in the presenee of the testator. This was settled more than a hundred years ago, in Hands v. James, where the attestation clause not showing that the witnesses signed in the presence of the testator, it was left to the jury to determine whether or not it had been so done, and the Court held that all the witnesses being dead, and the matter being incapable of express proof, it would be intended that the witnesses had set their names to the will regularly; and this has been the law ever since. (Hands v. James, Comyn’s R., 531; Croft v. Pawlett, 2 Stra., 1109; Brice v. Smith, Willes, 1; Lord Rancliffe v. Parkyns, 6 Dow, 202; Sampson v. White, 1 McCord, 74 ; Hopkins v. Albertson, 2 Bay, 484 ; Jackson v. Lugnere, 5 Cowen, 221; Jackson v. Le Grange, 19 Johns., 386 ; 2 Vesey, Sen., 460; 5 Vesey, 411; 9 Vesey, 381; 2 Bro. C. C., 504; 1 Littell, 101 ; 1 Wend., 406 ; 11 Wend., 599 .) Again, it is undoubtedly necessary, in order to sustain such a presumption, that there exists no better mode of proving the fact. Absence out of the jurisdiction of the Court, as well as death, opens proof of the handwriting of a witness; and I see no reason why the same intendment of the regularity of the attestation should not be made in one case as in the other.”

In the present case, the signature of the witnesses and of the testator are admitted to be genuine, and, under the authority of the cases cited, it will be presumed that all the formalities essential to the due execution of the codicil were complied with. Such presumption is especially just, as, from the lapse of time, the death of parties, and other circumstances, it has become impossible to prove directly the facts in relation to its execution.

Judgment affirmed.