defect, although it had the requisites of the statute, for what was bad in its creation, could not be made good by any thing ex post facto, and the operation of a codicil, where it is a republication, is only to set up the will in its original state and efficacy, making it, as far as it is efficient in itself by the solemnities of its execution and legal compass of expression, reach to the date of the codicil, and embrace intermediate acquisitions.

Thus a testator devised his lands to trustees and their heirs, in trust for maintaining and providing for the poor scholars of a college in Cambridge, and for other charities, and the will was written with his own hand, but had no witnesses, and afterwards he made a codicil, which was duly executed and subcribed by four witnesses, wherein he recited and took notice of the will. And one of the questions in the case was, whether the codicil was a good publication of the will within the statute of frauds? It was contended on behalf of the devisees, that the codicil, taking notice of the will, and being duly executed, made the will valid in the same manner as if it had been affixed to the will at the execution thereof, for the law would construe it as a part of the will, and its being laid in a different place signified nothing.

Attorney General v. Barnes, 2 Vern. 597. Prec. in Ch. 270.

one instrument, before the attestation could be held sufficient, for to neither, and to no part of either, were there three witnesses; and if they were distinct instruments, it seems, according to the authorities, that each ought to have been attested by three witnesses, to have been valid within the statute.

But it was held, that the will was void, for though there were three subscribing witnesses to the codicil, yet that would not support the will.

of the

difference

between a continua

writing in

tion of a

will form

erly begun,

publica

This difference between the relation which a codicil bears to a will, once completed according to the then existing intention, and that which subsists between the interrupted stages of one entire testamentary act, is not difficult to understand as a proposi- and tion, though very difficult to explain by example, or tion. apply in practice. Upon this distinction, however, will, it seems, depend the question, whether or not, the first act of testamentary disposition will require to be executed and attested according to the statute.

But whether the subsequent writing be considered as a republication by way of codicil, or as the conclusion of something already begun, as in the case just mentioned of Carleton v. Griffin, it appears quite clear, upon the principles of Habergham v. Vincent, already discussed, and the doctrines of other cases, that such subsequent writing to be effectual to pass land, must be executed and attested as the statute directs, in the case of devises of lands.

subscription of the

witnesses

need not

take notice

that they

It was early decided that a will of lands was good That the where the three witnesses subscribed their names, at several times, without being present at once together. And though the witnesses must subscribe the will in the presence of the testator, it is not necessary that in such subscription notice should be taken of the fact of its having been done in the presence of

Freem. 486. Anon. 2 Cha. Ca. 109. Anon.

attested in

the testa

tor's pre

sence.

e

the testator, for this is not in terms required by the statute; and whether it be so expresssed or not, it must be proved to have been so done, to the jury. The question on a case reserved on the trial of an ejectment brought by the heir, for the opinion of the court, was, whether it should be left to a jury to determine, whether the witnesses to a will (being all dead) did or did not set their names in the presence of the testator, and this merely upon circumstances, without any positive proof; and the court thought that it was a matter fit to be left to a jury: for they said, the witnesses, by the statute of frauds, ought to set their names in the presence of the testator, but it was not required by the statute, that this should be taken notice of in the subscription to the will; and whether inserted or not, it must be proved; and if inserted, it does not conclude, but may be proved contra, and the verdict may find contra. Then if not conclusive when inserted, the omission would not conclude on the negative side, and therefore, it must be proved by the best proof the nature of the thing was capable of. And they further said, that in case the witnesses were all dead, there could not be any express proof, since at the execution of wills, oftentimes none are present but the devisor and witnesses. The proof must, therefore, as in other cases, be circumstantial; and there were sufficient circumstances in the case, 1st, three witnesses had set their names, and it must be intended they did it regularly; 2dly, one witness was an attorney of good character, and might be presumed to understand what ought to be done. And the question being on a matter of fact, it ought to be left to the

• Hands v. James, Com. Rep. 531. et seq:

jury, like the question whether livery was given on a feoffment, where no livery was indorsed; and whether a deed was executed, where the counterpart only was produced.

66

To the same effect was the case of Croft v. Paulet', where the words of the attestation were signed, sealed, published, and declared, as and for his last will, in the presence of us, A. B. and C." And it being objected, that the hands of the witnesses could only stand as to the facts they had subscribed to, and signing in the presence of the testator was not one; the court, on the authority of the case of Hands v. James, above cited, said it was evidence to be left to a jury, with all the circumstances; and a verdict was given for the will.

The same point was decided in the same way a few years before, by Lord Chief Justice Willes, and the rest of the Court of Common Pleas, in the case of Brice v. Smith (3), where also the witnesses were all dead.

(3) Willes's Rep. . Com. Rep. 539. S. C. But the report in Comyns seems to be a little inaccurate, in saying, that nothing but the names of the witnesses were subscribed; the attestation being expressed in the same words as in the above-mentioned case of Croft v. Paulet, "signed, sealed, published and declared, by the said testator, to be his last will and testament, in the presence of us, &c." See the note of the editor. Willes 4. (b.)

K

What offences disqualify.

SECTION XIV.

Qualification of Witnesses.

IN Hudson's case, reported in Skinner, it was proved that the witnesses had been dealt with; upon which it was urged by the counsel, that if the witnesses were not to be believed, then there would not be three witnesses to the will, and so no will within the statute; to which Chief Justice Pemberton answered, that if there were three witnesses to a will, whereof one was a thief, or person not credible, yet the words of the statute being satisfied, and he having collateral proof to fortify the will, he would direct the jury to find it a good will. By which it should seem, we ought to understand his Lordship to mean, that if there was nothing at the time of the attestation to impeach the competency of the witnesses, they must be regarded as credible witnesses at that time, within the proper interpretation of the word credible, as used by the statute. But if a witness be convicted of felony, and so rendered infamous, at the time of his subscribing the will, it seems not to have been doubted, but that the will was invalid, for defect of a sufficient attestation.

Crimes which stigmatize a man with infamy, when convicted thereof, such as treason, felony, conspiracy at the suit of the crown, perjury, forgery, barratry, attaint of false verdict, and which disqualify him for giving evidence upon a trial in a court of justice, disqualify him also for becoming a subscrib

* 79.