Page images


and cestuy que use could compel the execution. By the statute Holdfast of Uses, 27 Hen. 8, the possession was drawn to the use, whereby uses were no longer deviseable. The stat. 32 and 35 Hen. 8, gave leave to devise, in writing made during the life of the devisor, two thirds; which the stat. 12 Car. 2, extended to the whole of his estate: Then came the stat. 29 Car. 2, which the preamble declares to be a guard against fraud. By construction of the 32 Hen. 8, bare notes in another's hand-writing were allowed as wills; Anders. 34; Keilw. 209; Dyer, 72; Cro. Eliz. 100. The present statute adds signing either by the party, or by some other person in his presence, or by his express (i. e. verbal) direction. Sealing is no signing within the act, 3 Lev. 1; though the name wrote at the beginning in the testator's own hand is; 3 Rep. 36 (c). The statute also requires attestation and subscription by witnesses that they may be certain of the instrument which they attest: And this in the presence of the testator. They must also be three credible witnesses (d). *A man may be a credible person, though not a *10 ] credible witness. Hales is an interested witness. His wife has a rent-charge on the lands devised. His legacy is also charged on both real and personal estate; and the jury have not found the personal to be fund sufficient. He who is to gain by the Qu.? Vide P. will, is not the credible witness meant by the act, and Lord 97. Hale who penned it. The word credible is not added in the next clause of the act, touching revocations; because less solemnity is necessary to reinstate the heir than to disinherit him(e). In a parol will, the devisee could not be a witness, Styl. 370: and shall he be allowed in a written one according to the statute? A witness cannot be credible if liable to suspicion. Lea and Libb, Carth. 35 (f), Two witnesses to a will, and two others to a codicil, not allowed to be three put together; Hil. 16 Geo. 2, K. and Sergison (g). The stat. W. 3, of deer-stealers, and the stat. Ann. concerning game, mention credible witnesses. It was determined, 6 Geo. 2, that partakers of the poor's rate were not so, because they have a share in the penalties. At what time must the witness be credible (h)? At the time of attestation; not when he is called to prove the will. Were he to release his own legacy, and wife's annuity, he would not be a credible witness. Suppose a certain age or

(c) See Coles v. Trecothick, 9 Ves. J.248. cannot be revoked, but by an instrument

(d) Devises are to be attested and sub- executed according to the solemnities rescribed in the presence of the testator, by quired by that statute, or by burning, canthree or four credible witnesses. The term celling, tearing, or obliterating the same by "credible" is to be construed in this pas the testator himself, or by his directions : sage as synonymous with “ competent;" per Ld. Mansfield in Burtenshaw v. Gil. per Willes, c. I. in Pendock v. Mockinder, bert, 1 Cowp. 49, 52; see 1 Doug. 244, Willes, 666. Ld. Mansfield thought the n. (2), and Clymer v. Littler, post, 345 : word “ credible" inaccurate, as to which also Onions v. Tyrer, 1 P. Wms. 343, and see Wyndham v. Chetwynd, 1 Burr. 418, some observations on this case in 1 Powell on 419, and post, 98. S. C. See also Hindson Devises (edit. by Jarman), pp. 591, 593. v. Kersey, 4 Burn's Ecc. L. 97 (7th ed.); . (S) 3 Mod. 262, 1 Show, 69, S. C. Bettison v. Bromley, 12 East, 250, and (g) 2 Stra. 1181. cases there cited; Phipps v. Pitcher, 6 (n) Pryse v. Lloyd, i Ves. Sen. 503, Taunt. 220, and Lowe v.Jolliffe, post, 365. 2 Ves. Sen. 374; Glyn v. Bank of England,

(e) Since the statute of frauds, a will Id. 42.


Holdrast dignity were requisite to qualify a witness, must not that be at

the time of attestation? Can a child be a witness and prove it when grown up? It is not in the power of a legatee to determine, who shall have the estate, by accepting or refusing his legacy. By the civil law, the witnesses must be credible cum signarent, C. 6, 23, 1. Suppose a witness becomes infamous, that does not vacate the will, but he shall be considered as

dead; Jones and Mason, P. 2 Geo. 2 (i), allowed on Ward [ *11 ] of Hackney's being witness to a bond. * Hillyard and Jenyns,

1 Ld. Raym. 505, Comyns 91, 94, Carth. 514, Cas. temp. W. 3; a devisee in remainder was witness to a will, and not allowed.

Objection.—Hales is a good witness, quoad the devise to the defendant; for in the case in Carthew, the devise is bad to the witness, and he is a bad witness to that devise. So says the book. But there were no other lands devised in the will, than those to Hillyard. Answer.-Hales would not be a credible witness, even if his wife's annuity were charged on other lands; 3 Mod. 263. A witness must be credible in toto, or not at all. Suppose four estates devised to four different persons, who all witness the will. Are they credible witnesses to each other's respective devises, and not to their own? There is only one instance where the statute has been loosely construed. Salk, 688; 1 Ld. Raym. 507, the attestation in the testator's presence allowed to be sufficient, by a possibility of seeing through a glass door (k). But this was at the testator's particular request.

Serjeant Prime for Dowsen, the plaintiff in error.- We are not to be bound by the nice scruples of the civil law, with respect to witnesses; nor indeed is civil law so nice in testamentary cases as supposed. Domat. 2, 3, 1, 3, 8, 9, 10. Heres non, legatarius potest esse testis. By hæres is meant the hæres factus, or executor (I). A small legacy is no objection to a witness; 1 Mod. 254. In a devise to the poor of a parish, inhabitants are allowed to be witnesses, 2 Sid. 109; De minimis non curat Ler, F. N. B. 107. Elizabeth Hales' annuity is not in the power of the husband. His interest therefore is very

small. Domat, in the same section, says, an executor may be [ *12 ) a witness, if he did not know the contents of the will. *Swin

burn, 4, 64, 11. Godolph. O. L. 67. The testimony of a legatee may be good for the rest of the will, though not for his own legacy. As to 3 Lev. 1, the practice is now otherwise at Nisi Prius. Where a new clog is laid on devises, as, by the stat. 29 Car. 2, the Court will not enlarge the meaning of the

(0) 2 Str. 833. Where the plaintiff was the only surviving witness, and also administrator de bonis non of the obligee, proof of the hand-writing of the obligor was allowed; Godfrey r. Norris, 1 Stra. 34. So an executor; Gess v. Tracy, 1P. Wms. 289. But where the witness was interested at the time of attestation, and also of the trial, there proof of hand-write ing not allowed: the Court distinguishing

that case from the preceding; Swire v. Bell, 5 T. R. 371.

(k) In favour of attestation it is presumed, that if the testator might see, he did see. But where the devisor cannot by possibility see the act doing, that is out of his presence; Dee v. Manifold, I M. & S. 294.

(1) As to this point see Harris' Justinian. Lib. II. Tit. X. Sect. III.


[ocr errors]

words. On the statutes of hue and cry, the plaintiff may be a HOLDFAST witness; and credible if the jury think proper. Here too, the statute of frauds requires a witness generally; whether credible must be determined by a jury. It is true, that a commoner cannot be a witness as to rights of common; Hob. 92 (m). But it is his own right that is trying. So of parishioners with respect to a modus. As to the time of the witness being credible: 1 Ld. Raym. 730, Salk. 691, legatees were admitted to be witnesses, having received or released their legacies. 1 Sid. 315, a legatee may be a witness; though he makes over his legacy, even pending trial. Lea and Libb proves nothing to the present purpose. Tender and refusal of a legacy amounts to an absolute renunciation of it; and besides, here the real estate is only chargeable with legacies conditionally, if the personal is not sufficient. A will may be good in part. Thus a devise of all lands was void by the stat. 32 Hen. 8; as to one third only, but good as to the remaining two thirds. If a disseisee enters on part only of the land disseised, his will will be good pro tanto. If a devisee of land dies, living the testator, a devise to the remainder-man is good. *Max- [ *13 im: Opinio quæ favet testamento est tenenda. No suspicion of fraud in this case. Qu. What interest has Hales? If Dowsen gets the estate, how will he get his annuity? Will he distrain? If he does, he can't avow under the will; for we admit he cannot be a witness to prove his own rent-charge. Godolph. 455, 459. Swinburn, 7, sect. 20, 21. Testator, by making Hales a witness, shews he meant to revoke his legacy. It is an implied revocation. For wills must be so construed as to make them stand entirely if possible. If two directly opposite designations in same will, the latter must stand. The testator must be supposed to know the statute; therefore by calling Hales as a witness, who was before a legatee, which capacities are wholly inconsistent with each other, he virtually rescinds the legacy. The attestation is an essential part of a will, as well as of a deed. Hence it follows, that the will is good with respect to every body but John Hales. The case of Oxenden and Penrice(n) does not interfere with this argument. As to the case put, of four witnesses to a will containing four different devises, one to each witness respectively; there three come to support the devise to the fourth subscribing witness. That not the case here. Plaintiff in error no witness to the will. The rule is, that a legatee cannot be a good witness, quoad himself or any other witness. See Godolph. 67. And then each witness must lose his own legacy of course, to qualify himself to be a witness.

Mr. Gundry for defendant in error. The legacies are in law the same as if both to John Hales. No distinction of property between husband and wife. The annuity is also the husband's; he might distrain and avow for it. If Hales therefore is competent and credible, *who is not? Judges can never have abso- [ *14

[ocr errors]
[merged small][ocr errors]

HOLDPAST lute certainty of facts; that arising from a man's own mind.

le Seldom demonstration: for the medium must be clear to conDowSEN.

stitute that; and the medium is usually a thing to be tried.On such trial, written evidence is the best kind, and parol will seldom be admitted where the other can be had. Among parol evidence, no interested witness can be admitted, though he is interested illegally or consequentially only. Where an interested witness is forward to prove a deed, he is to be the more suspected. Interested witnesses have been rejected on the trial of commons and modus's. The objection of high antiquity; Co. Litt. 6; Salk. 283. Remainder-man expectant on an estate tail cannot be a witness, though his estate is in the power of another, Here, Hales is embarked in the same venture with the devisee. The question is the validity of the attestation, and surely Hales shall not be a witness to this. He is witness to the title of his own annuity. Styl. 370; Legatee no witness. 1 P. Wm. 10; Children of legatee witnesses to a will: will rejected by the delegates. iLd. Raym. 730; Testator gave le

gacies to servants living with him at the time of his death: two · servants witnesses; their testimony not good, though their in

terest uncertain at the time of subscribing. 6 Rep. 15 b, gives the reason why common law would not allow the devise of lands, Wills have introduced more fraud, roguery, and perjury, than any other conveyance. Rogues think to compound for their villanies by giving donations to hospitals, &c. Misers grow more tenacious in their lives, as they know they can give when

they die. It is a mistaken notion, that of favouring the execu[ *15 ] tion of wills; the favour is due to the contents. * Courts of jus

tice should not refine on the statute of frauds; for such refinements would let in the mischiefs which the statute was meant to prevent. The act is a sure guide. Lea and Libb shews the strictness wherewith this act has been construed. Departing from the statute in favourable cases, may be a precedent in those which are not so. Three witnesses is the degree of evidence which the act requires. Two may swear true, and so may one; but the evidence is not so credible. Hales is no witness, even with respect to Dowsen; being under an undue bias. The case in 2 Roll. Abr. 685, where four were indicted for perjury and admitted witnesses for each other, was in a personal cause; but Hales is to establish a deed. If by Hales's evidence the lands shall pass, the annuity must pass too. He is witness to the execution, which must extend to the whole will; for a will is an entire thing. A will cannot be good or bad, in part only, for want of due attestation. Shall a witness be competent as to part? Can any one devise be void for want of due attestation? The argument for a partial validity, drawn from the devise of lands in chivalry, proves the contrary of what it was alleged for; being still an entire will as to what the testator can dispose of. The distinction of a legatee’s not being a good witness quoad his own legacy or that of any other witness, how is it grounded? This is only made to evade the case, and is a doctrine fruitful of absurdities. As to the revocation of legacy by calling the

[merged small][merged small][ocr errors][ocr errors]

legatee to witness; testators are not supposed to know the law, and therefore the law is favourable to contents of wills. So that he cannot be supposed to have intended such revocation. Besides this is mere supposition against the clear words of the statute. Witness must be credible at the time of attestation, [ as is plain from the words of the act. He cannot become credible afterwards by releasing or receiving his legacy, for that is confessing he was once not a credible witness.

Serjeant Prime in reply. -Hales cannot avow, if he distrains for his annuity; for he must then prove the will. As therefore he can receive no present benefit from it, there is no present interest in him, nor in his wife during his life. Remainder-man after estate tail has an estate vested in him, while estate tail subsists; though tenant in tail may devest it afterwards. Therefore he is witness in propriâ causâ. Pauper cannot be witness on prosecution upon the game law, because he is to receive the penalty. It is his own title that is trying. Styl. 370, is an anonymous note, no judicial opinion. Allowing that a witness must be competent tempore signandi, if he is only a witness to the execution, not the contents, as is said; what bias is he under? He would most naturally presume he was not interested in the will, because called to attest it. The law will not presume that he knows the contents. No authority cited to shew, that devisee or legatee may not be a competent witness quoad alios. Nor that a legatee, even though he has not released, may not be a good witness to the execution of a will. Nor that a legatee is entitled to his legacy by that will which he witnesses. A man may be supposed ignorant of the law, in order to forward his intent, not to defeat it. Godolph. 455, marg.; Litt. 368; Perk. 478; Plowd. 343, 344. An act done by a testator, repugnant to any part of a testament, is a repeal of that part of it. * Wills were a great accession to the people, as they delivered us [ from one of the bondages of feudal tenure; under which tenants were not suffered to dispose of their lands, because lords would lose their marriage, ward, and relief. Every devise is by the words of the statute supposed to be separate. Legatee cannot be a witness to the legacy of a brother witness; because the brother witness's legacy is by act of law rescinded also. In Lea and Libb it is only determined that two cannot be three; there were never three present at once. The question was, Whether a witness to a codicil, was so to the will; that is, whether he was absolutely a subscribing witness; not whether, supposing him a witness as Hales is, he was competent or credible.

N. B. This cause, before judgment given, was compromised by the parties; but gave occasion to stat. 25 G. 2, c. 6(0).

[ocr errors][ocr errors]

miss to the supposed to relief. Eybecause lord tenants

(0) By which it is provided, s. 1, that if any person shall attest the execution of any will or codicil (to whom any beneficial devise, legacy, estate, interest, gift, or appointment affecting any real or personal estate, except charges on land, &c. for payment of debts, shall be given), such devise, legacy, &c. shall, so far only as concerns

such person attesting the execution, or any person claiming under him, be utterly null and void; and such person shall be admitted as a witness to the execution of such will or codicil, within the intent of the 29 Car. 2, c. 3, s. 5, notwithstanding such devise, legacy, &c. This act extends to a legacy though of personal property only;

« PreviousContinue »