upon DEVISE. the court at that period, with Lord Camden, and such of the Judges of the Court of King's Bench as differed with Lord Manfield on the general point, support the doctrine, that credibility has the same meaning as competency, must exist at the time of attestation, and cannot be dispensed with or supplied by any ex post facto procedure; Lord Mansfield, and the Judges of the Court of King's Bench, who agreed with his lordship, together with the three puisne Judges of the Court of Common Pleas, who sat with Lord Camden, were of opinion that competency, according to the rule of law at the time when the witnesses were called upon to prove their attestation, was sufficient. But to those Judges who entertained the former opinion this point, we may certainly add the legislature at large, who by the explanatory law of the 25 Geo. 2, have, in all cases to arise subsequent to the 4th June 1752, precisely adopted that exposition; for, although the statute has said, as the case was questionable previous thereto, wills, executed before the time limited therein, shall not be rendered invalid by reason of a mistake in construction; and that, therefore, to effectuate such wills, the common law method of supplying credit by an ex post facto act, as a release or payment, shall be sufficient; yet as to all wills to be made after that time, the legislature have expressly said, that no man, not competent at the time of attestation, shall by any subsequent act become credible at the time of examination, by enacting, that to render all men credible at the time of examination, any act to make them incompetent at the time of attestation shall be void. But a legatee may be a witness against a will; for the reason that a legatee is not a witness for a will being, because he is presumed to be partial in swearing for his own interest; it follows, that a legatee, when he swears against a will, swears against his interest, and so is the strongest And see 2 Ves. jun. 636. evidence. And so if it stand indifferent to the witnesses, whether the will, under which they are legatees and to which they are witnesses, be valid or not, the witnesses, though legatees, are credible. Thus, where the devisee having made a will, in 1746, of his whole estate real and personal, charged with debts and legacies, in which the three subscribing witnesses had legacies; all three released. The testator had also made a former will, 1744, attested by three disinterested persons, under which the three subscribing witnesses to the will of 1746, would have had the same legacies. A bill being brought in Chancery to have the latter will established, it was contended, that notwithstanding the will of 1744, (which the testator had revoked as he thought' effectually, and might probably have cancelled) it was a benefit to the witnesses, at the time of subscribing, to have a legacy under the latter will. But the Lord Chancellor was clearly of opinion, that these were good witnesses; for at the death of the testator, it was indifferent to them which will prevailed; and his lordship declared the will of 1746 to be well proved. An infamous person is not a competent witness to a will under this statute. Thus, where the question, on a special case reserved at the assizes, was, whether a person who, before the time of attestation had been indicted, tried, and convicted for stealing a sheep, and was found guilty to the value of ten-pence, and had judgment of whipping, was a sufficient witness within the statute? the whole Court of Common Pleas were clearly of opinion, after three arguments at the bar, that he was not a competent witness; and laid it down as a rule, that it was the crime that created the infamy and took away man's competency, and not the punishment for it ©. a Oxendon v. Penerice, 2 Salk. 691, pl. 5. Lord Ailesbury's case, cited 1 Burr. Rep. 427; Camd. Arg. 21. • Pendock v. Mackender, 4 Burn's Ecc. Law, 93. DEVISE. DEVISE. Devise void for VIII. THE MEANS BY WHICH A WILL MAY FAIL OF TAKING EFFECT. A DEVISE, though constituted in the manner which has been described in the preceding part of this chapter, may be prevented from taking effect from various circumstances; some of which originate from defects apparent on the face of the instrument, others from collateral matters, or, to speak in technical language, dehors the will. Of the first kind is any uncertainty or repugnancy in the words of the will itself, which may arise either from an obscurity in the description of the thing devised, or of the interest therein, or as to the general intent of the devisor; these, in legal language, are termed patent ambiguities. Under this branch also we may include limitations that fail, from being formed to attain objects which the policy of the law forbids the effectuating. Cases of the second kind are, where will fail of effect by reason of uncertainty or repugnancy arising out of facts existing independent of the will; as when doubts arise as to which of several persons or things, in themselves similar and respectively answering the description used in a will, the will was intended to apply; these are, in technical language, termed latent ambiguities. Under this head of a devise failing of effect, may likewise be ranked cases in which a will becomes inoperative by reason of the testator's performing or satisfying it in his life-time; also those where a devisee waives the benefit of a devise; and cases of fraud by breach of trust; likewise fraudulent devises, under the statute 3 & 4 W. & M. c. 13. So cases where wills fail of effect by reason of revocation, whether positive or implicative, fall properly under this branch of our subject. As to the first of these circumstances, it is a rule uniuncertainty,&c. versally adopted in the construction of wills, that whenever there is an irreconcileable uncertainty or repugnancy in the disposition made by a testator of his real property, the title of the heir at law shall be preferred to all others; because, where a court cannot find words in a will which either expressly or by necessary implication denote the testator's intention beyond the possibility of a doubt, the rules of law directing descents, which are certain, must prevail, and cannot be superseded by an uncertain devise. Thus one ground upon which Lord Hobart decided in Counden and Clerk's case, was that the clause, "that the land should be to the right heirs of the testator's name and posterity, part and part alike," made the will, then in discussion, repugnant, uncertain and insensible; for if the heir were preferred, that would be an entail, and then none could share with him: and, if the testator meant that all that were males of the name and posterity should take together, then the effect of the word heirs must be rejected, and the sons should take equally with their father. Uncertainty and repugnancy, apparent upon the face of a will, may be either in respect of the application of the words of the will to the thing devised, or to the quantity of interest therein meant to be devised, or to the person described by the devise. With respect to the first of these, the case of Ride v. Atwicke, affords an instance. There I. seised in fee, devised all his freehold land to his wife for five years, &c. and, by codicil, added, "that if any of his three sons, W. D. or I. died before the five years were out of the freehold, then to be equally divided between those of his sons that should be then living," and no mention of lands was made in the codicil. W. and D. died within five years, leaving his wife enseint with a child. And the question between this child, who was heir at law to the testator, and I. the surviving brother, was, as to the application of the words in the codicil; whether they referred to the Hob. 34; Moore, 860. • Ride v. Atwicke, 1 Keb. 692, 754, 773, pl. 9. DEVISE. DEVISE. freehold, and gave it to the surviving brother, so as that he was to have the whole for life, or whether they referred to the five years term, requiring the freehold to be divided upon the death of either of the sons within the five years. When after much discussion and different opinions in the Judges, the Court, on different grounds, decided in favour of the child of D. who was heir at law. But Keeling, Chief Justice, and Hyde, Justice, were of opinion that the codicil was uncertain and derogatory, and so void. So where P. seised of two messuages in fee, having issue two sons, R. his elder son, and N. his younger son, and four daughters, E. M. O. and A. made his will, and thereby devised his two messuages to N. his younger son, and he to have 30l. per annum for his maintenance for ten years after the death of his grandfather, the residue of the profits during that time to be applied for raising portions for his daughters; and, if N. died, then the estate that N. had, to go to his four daughters, share and share alike, and then the testator devised in these words, "and if it shall please God ALL my sons and daughters die without issue, then to my sister and her heirs," &c. The devisor died, then the grandfather died, and then N. entered upon the lands, and died without issue. Afterwards the four daughters entered and were seised, and one took husband, had issue, and died, and the husband claimed to be tenant by the curtesy. The question was, whether the daughter took such an estate as entitled her husband so to be? it was agreed that N. had but an estate for life, and that the words share and share alike, made the daughters tenants in common for life, and that the word estate, as used here, carried no interest, but was only a description of the land, &c. The doubt, therefore, was, whether the daughters took an estate-tail by implication upon the last clause in the will? and the Court were unanimous that they did not. And Herbert, Chief Justice, in delivering the opinion of 1 Price v. Warren, Skin. 266; S. C. 2 Eq. Ca. Abr. 357. |