powers given by the statutes, the particulars of which were, that a will of lands should be in writing, signed and attested by three credible witnesses in the presence of the devisor: that these were checks to prevent men from being imposed upon : and certainly meant that the witnesses to a will (who are required to be credible) should not be persons entitled to any benefit under that will. And that, therefore, J. H. was not a good witness.(1)

It seems also, that the question was started in this case, whether a benefit to a witness at the time of his attestation, should annul his testimony, though at, or after the testator's death, he should become disinterested by a release of his legacy, or the receipt of the value thereof, and that it was held, that the condition of the witness, at the time of his attestation, must be regarded; and that if interested then, he could not be a good witness. The doubts and objections agitated in this and in other cases,(m) occasioned the statute 25 G. 2, c. 16, to be passed, whereby the contests concerning the force and obligation of the word credible,' in respect to the attestation of persons benefited under the will, were finally composed.

[422] Of the opposition in sen

timent be

tween Lords Mansfield & Camden, on the import and exigen

cy of the

statute.

The curious student, however, whose search is after general principles, and topics of legal discussion and discrimination, will, notwithstanding the removal of the practical necessity for the inquiry, still recur to the perusal of Lord *Mansfield's(n) and Lord Camden's arguments() on the opposite sides of the question, concerning the import and exigency of the words 'credible witnesses,' used by the statute. He will find Lord Mansfield strenuously of word 'crediopinion, that though a witness might be entitled to a benefit under ble' in the a will at the time of the attestation, yet, if he became disinterested before his examination, his testimony was restored, and the will was supported by his attestation. In his Lordship's judgment, the word 'credible' could have no meaning beyond competent,' without leading to great absurdities; and in this general exposition of the word, Lord Camden coincided, but their difference was this: Lord Mansfield would understand competency' to imply nothing more than what was tacitly contained in the word witness by itself, (no man being a witness unless he is competent

(7) Strange, 1254. (m) Hilliard v. Jennings, Com. Rep. 91; and 7 Bac. Abr. edit. Gwyllim, 329. Price v. Lloyd, 1 Vez. 503. 2 Vez. 374. (n) Windham v. Chetwynd, 1 Burr. 414. Kersey, 4 Burn. Eccl. L. 97.

(0) Hindon.

to give his testimony) so that it appeared to his Lordship,(152) that the competency was to be seen and judged of at the time, and with reference to the time of examination in court. Whereas, according to Lord Camden, the credibility, i. e. competency, must be regarded as it stood at the time of the attestation. By Lord Mansfield's explanation of the force of the word credible, it became a dead letter, and, therefore, his Lordship reduced himself to the necessity of supporting his argument, by supposing the word credible,' to have slipped in through the inadvertency of the framers of the statute, which he denied to be the production *[423] of Lord Hale, any further than, *perhaps, as being compiled from some of his loose notes, unskilfully digested.(153)

His Lordship adverted to the rule of testimony in the Ecclesiastical Courts, and at the common law, where a release, payment, or tender, made the testimony of the witness good. Nice objections of a remote interest, which could not be paid or released, though they hold in other cases, were not enough to disqualify a witness in the case of a will. Thus, parishioners, he said, might prove a devise to the poor of the parish forever. Interest was no positive disability; it only afforded a presumption of bias, and on that ground rendered a witness incompetent; but still it was only presumption, and presumptions only stood till the contrary was made apparent; if the bias were removed, the presumption ceased. That nothing could be more reasonable than to allow this objection of interest to be purged by matter subsequent to the attestation, and previous to the trial.

Lord Camden, on the other hand, in the case of Hindon v. Kersey, argued, that the word credible' imported a necessary and substantial qualification of a witness at the time of his attestation. And that if the witness was incompetent at that time, nothing ex post facto could restore the validity of his attestation ;

(152) In the subsequent case of Hindon v. Kersey, it is stated, that Lord Mansfield, previous to his delivering his opinion in Wyndham v. Chetwynd, declared that it was his own, and that he was personally answerable for all its errors; the judgment of the court being general, that they held the will duly executed according to the statute.

(153) I have ventured to answer this opinion in my preface, by the mouths of the greatest chancellors and judges, before and since Lord Mansfield's time.

neither could such devisee or person, taking a benefit under the will, be received as a witness for other devisees under the same will the objection was irremoveable, and the whole instrument, as far as it concerned real property, was void. He was of opinion, that the novelty introduced by the statute was the attestation, the method of proving which, was left standing upon the old common law principles; as that one witness might prove what all the three had attested, and, though that witness must be a subscriber, yet that was *owing to the general common law [ 424 ] rule, that the best evidence must be produced. He considered, therefore, that the statute had principally in view the quality of the witnesses at the time of the attestation.(154) That a will was the only instrument which required to be attested by subscribing witnesses at the time of execution: while leases, marriage agreements, declarations, and assignments of trusts, were only required to be in writing and signed. Those were all transactions of health, and protected by valuable considerations, and antecedent treaties. The power of a court of equity was thought sufficient to meet every fraud that could be practised in those cases; but a will was often executed suddenly in a last sickness, and sometimes in the article of death; and the great question to be asked in such case was this-was the testator in his senses when he made the will?() and consequently the time of the execution was the critical minute which required guard and protection.An act so solemn, and often calling for a laborious recollection and investigation, executed at such a time, was pregnant with suspicion what then, his Lordship said, was the employment of the witnesses? It was to inspect and judge of the testator's sanity before they attested, and if he was not capable they ought to refuse to attest. In other cases, the witnesses were passive; here they were active; and in truth, the principal parties to the

(p) Vid. Doc. on Dem. Walker v. Stephenson, 3 Esp. Ni. P. Ca. 284.

(154) In Brograve v. Winder, 2 Vez. jun. 636, an objection was taken to the competence of one of the witnesses to the will, as being interested at the time of his examination; but as he had no interest at the time of the execution of the will and death of the testator, the Lord Chancellor, without argument, held him to be a good witness.

transaction. THE TESTATOR WAS INTRUSTED TO THEIR CARE. The design of the statute was to prevent wills from being made, which ought not to have been made, and always operates silently

by intestacy. It is true, continued the Chief Justice, the de* [ 425] sign of *the statute was to prevent fraud; and though no suspicion of fraud appeared in the case before him, yet the statute had prescribed a certain method, which every one ought to pursue to prevent fraud.(9) As to the minuteness of the interest, as there was no positive law which was able to define the quantity of interest which should have no influence upon men's minds, it was better to leave the rule inflexible, than to permit it

TO BE BENT BY THE DISCRETION OF THE JUDGE.

Thus, I have endeavoured to compress into a small compass, for the reader, the principles upon which these great judges mainly relied in their opposite views of this arduous question. He will perceive, that both the cases of Wyndham v. Chetwynd, and Hindon v. Kersey, came before the respective courts, after the statute 25 Geo. 2, viz. the former in Michaelmas term, 31 G. 2, the latter in Easter term, 5 Geo. 3; but the wills in both the cases were made before the last-mentioned statute was to have its operation of making void the beneficial interest given by the will to the person becoming a subscribing witness thereto, and, therefore, those cases could only come under the third section of that statute (if at all) which provided for the case of wills made before the 24th of June, 1752, and this clause makes mention only of a legacy or bequest, and extends only in words to the immediate object of such legacy or bequest. Neither the case, therefore, of Wyndham v. Chetwynd, being that of a creditor of the testator becoming a subscribing witness to his will, which charged his debts upon his real estate; nor that of Hindon v. Kersey, in which there was a devise of the testator's lands to trustees to dispose of the rents to the poor of a township, (the subscribing witnesses being seised of property in the township assessed to the poor rate) were within the third section; and, consequently, they were not either of them within the statute. The circumstances of which cases would, however, were they now to happen, clearly bring them respectively within the first and second *[526] sections of the above-mentioned statute of George the Second. This great question is, therefore, now at rest to all practical purposes, and remains only a subject of curiosity, on which, as such, (9) Vid. Lea v. Libb, Carth. 37; the words of the court.

a great incidental importance is reflected, by the exercise they have given to two of the finest intellects which have adorned the bench of justice, in the maintenance of a most solemn and diametrical opposition of argument.

We cannot but observe, however, that, although Lord Mansfield was supported by all his brothers, and Lord Camden was overruled by those who sat with him, the legislature showed their sense of the subject to agree with the policy and principles of Lord Camden's reasoning, by extinguishing the interest of the subscribing witness, whatever it might be at the moment of his attestation. By this provision of the legislature by their second act, they seem to have declared their intention by the first; and still, in their alteration of the law, regarding the time of the attestation as the critical juncture to which the qualification related, they have made the interest of the individual a sacrifice to the will.

An attentive consideration of what has been above laid before the reader will, it is hoped, enable him to peruse a statute with intelligence, the true spirit whereof, without a display of the state of the controversy which gave it birth, might not so easily present itself. That it may be read and considered by the student with the more advantage, by falling into the train of those ideas which have been already given him by what has gone before, I have thought it best to copy out the whole act, and insert it immediately after the statute of frauds and perjuries, which it seemed likewise advisable to introduce entire at the end of this volume, for the greater facility of reference.

*PART V.

WE come now to consider the constructions put by the courts of justice upon the words of the statute, requiring the subscription of the witnesses to be made in the testator's presence.

Upon a feigned issue, tried in the court of Common Pleas, the question was, whether the will was made according to the statute of frauds? for the testator had desired the witnesses to go into another room, seven yards distant, to attest it, in which there was a window broken, through which the testator might see them. The Court said, the statute required attesting in his presence, to prevent obtruding another will in the place of the true one. It