Who may be witnesses. Lees v. Summersgill, 17 Ves. 508. whole that was written on the paper. Adjudged that the will was duly attested. 44. With respect to the persons who are capable of being witnesses to a devise, the statute of frauds only mentions the word credible; and therefore all those who are capable of being witnesses in any other matter, may also be witnesses to a will. The Judges were however formerly very strict, as to the competency of the witnesses to a devise; for neither a devisee, legatee, or creditor, was allowed to be a competent witness to a devise. 45. This occasioned the statute 25 Geo. II. c. 6. by which it is enacted,-§ 1. "That if any person attest the execution of any will or codicil, to whom any beneficial devise, legacy, estate, interest, gift, or appointment, except charges on lands, tenements, or hereditaments for payments of any debt or debts, shall be thereby given or made; such devise, legacy, estate, interest, or appointment shall, so far only as concerns such person attesting the execution of such will or codicil, 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." § 2. "In case by any will or codicil any lands, tenements, or hereditaments shall be charged with any debt or debts; and any creditor, whose debt is so charged, shall attest the execution of such will or codicil; every such creditor, notwithstanding such charge, shall be admitted as a witness to the execution of such will or codicil, within the intent of the said act." $ 6. "Provided always, that the credit of every such witness so attesting the execution of any will or codicil, in any of the cases in this act before mentioned, and all circumstances relating thereto, shall be subject to the consideration and determination of the court and the jury, before whom any such witness shall be examined, or his testimony or attestation made use of; or of the court of equity in which the testimony or attes tation of any such witness shall be made use of; in like manner to all intents and purposes as the credit of witnesses in all other cases ought to be considered and determined." 46. Two celebrated cases have been decided respecting the competence and credibility of witnesses to a will. The first is that of Wyndam v. Chetwynd, in 1 Burr. R. 414. the Court of King's Bench: and the second is that of Doe ex dem. Hindson v. Kersey, in the Court of Common Pleas. But as they relate to wills made before this statute, it is unnecessary to state them. 47. A legatee may be a witness against a will, because he swears against his own interest, and so is the strongest evidence. 48. An infamous person is not a competent witness to a will; and therefore it was held, in a modern case, that a person who had been convicted of stealing sheep was not a competent witness to a will; for it was the crime that created the infamy, and took away a person's competency, not the punishment. 49. An estate in fee on the determination of a life estate was devised to the wife of A. B. A. B. was one of the three witnesses who attested the will. Testator died in 1779, and the wife of A. B. in 1813, before the life estate was determined. A case was sent by the M. R. for the opinion of the K. B., and they certified their opinion to be that the will was not duly executed, so as to pass real estate to A. B.'s wife. Oxendon v. Penrice, Pendock v. Makender, 4 Burn's Ecc. Law, 95. Hatfield v. Holdfast v. 2 Str. 1253. Law, 97. 4 Burn's Ecc. Carthew, 514. 50. A devise must also be published; that is, the de- Publication. visor must do some act from which it can be concluded that he intended the instrument to operate as a will or devise. And Lord Hardwicke has mentioned a case 3 Atk. 161. where, upon a trial at bar in the Court of K. B. the question was, whether the testator had published his will, for there was no doubt of his executing it in the presence of three witnesses, or of their having attested it in his presence; which showed that publication was, in the eye of the law, an essential part of Peate v. Trimmer v. the execution of the will, and not a mere matter of form. 51. The words, "signed and published by the said A. B. as and for his last will and testament," are a sufficient publication; and the delivery of a will, as a deed, has been also held to be a sufficient publication. 52. A will was delivered by a testator as his act and 4 Burn's Ecc. deed; and the words sealed and delivered were put above the place where the witnesses were to subscribe. It was adjudged that this was a sufficient publication. Law, 119. A person cannot empower lands by a will not duly at tested. Opin. 435. 53. It has been held in several cases, which will be himself to give stated hereafter, that where a person, by a will duly attested, charged his lands with the payment of his debts and legacies, a legacy afterwards given by a codicil, not duly attested according to the statute of frauds, but sufficient to pass personal estate, would be good. From which it was concluded that a person might, by means of a will duly executed, empower himself to make a future disposition of lands, by another instrument, not duly executed. This doctrine, if established, would have been attended with the most serious consequences; for as Mr. Fearne observes"If a man might, by a will duly attested, devise his lands upon such trusts as he should appoint by any other instrument, it would in effect amount to a repeal of the statute of frauds, in respect to the solemnities of testamentary dispositions of lands. A man would have nothing to do but, on his coming of age, to make one general repeal of that statute, in regard to himself, by devising his whole real estate to some nominal persons, and their heirs, upon such trusts, &c. as the testator should afterwards by any writing appoint; and he might, by reference to such repealing will, at any time make a testamentary disposition of the estates, without the least attention to the ceremonies required by the statute. This would let in all the inconveniences of frauds and perjuries intended to be prevented by the last-mentioned statute, in regard to testamentary dis positions of land; nay, the legal absolution might possibly be extended to the statute of wills as well as that of frauds, &c., and by considering the first intermediate will a sufficient compliance, as well with the requisition of writing, required by one statute, as of the ceremonies of execution by the other; a parol appointment of the trusts might be attempted, under a power worded for that purpose, in the original absolving will.” This opinion has been established as good law, by the following case. 54. Samuel Hill, by a will duly attested, devised his freehold estates to five trustees, and the survivors and survivor of them, their and his heirs and assigns, to the use of his grand-daughter for life, remainder to her first and other sons in tail male, remainder to her daughters as tenants in common in tail general, remainder unto or for the use of such person or persons, and for such estate or estates, as he, by any deed or instrument to be executed by him, and attested by two or more credible witnesses, should direct, limit, or appoint. The devisor, by a deed poll dated the day after, under his hand and seal, attested by two witnesses, after reciting his will, in pursuance of the power thereby reserved to him, limited and appointed his estates, after the death of his grand-daughter, and failure of her issue, to the first and other sons of his son, &c. A question was referred by the Court of Chancery to the Court of King's Bench, whether the two instruments, taken together, were, at the time of the death of the devisor, sufficient to pass any estate or interest in the freehold premises, not given by the first instrument. The Court of King's Bench certified their opinion, that the two instruments taken together were not sufficient to pass any estate or interest in the freehold premises, not given by the first instrument; on the ground, that the second instrument was a deed, and not a will. The cause coming on for further directions, Lord 2 Ves. Jun. Loughborough called to his assistance Mr. J. Buller, 204. Vide Rose v. Cunningham, infra, § 60. Wills charging lands are within the statute. 2 Atk. 272. 2 Ves. 179. But not codicils giving legacies. and Mr. J. Wilson, and they were all of opinion that the second instrument was testamentary; but not being attested according to the statute of frauds, could have no operation or effect. 55. The statute of frauds requires that all devises of lands or tenements shall be executed in the manner above stated; and it has been determined that all devises by which terms for years, or other interests arising out of lands, are created; or by which powers to sell or charge lands are given, are within the statute. Therefore where an estate is devised for a term of years, or a sum of money is given originally out of land, a will containing such a charge must be executed in the manner prescribed by the statute: because it is the same as a devise of the land, since the term of years is an interest in the land, and money thus given can only be raised by a mortgage or sale of the land. 56. There is one exception to this rule, which has been already mentioned, namely, where a will duly executed according to the statute of frauds contains a Hyde v. Hyde, general charge on the testator's lands, in aid of his per1 Ab. Eq. 409. sonal estate, it will extend to legacies given by a subsequent will or codicil, not duly attested. 57. Richard Boughton, by a will executed according to the statute of frauds, gave his sister 400l. and the remainder of his estate, after payment of his debts and legacies, to his brother. By another will, not duly attested, he gave to the same sister 1007., and to another sister 4007., and all the rest of his estate, real and personal, to his brother. One of the questions in this case was, whether the legacies given by the second will, could be considered as charged upon the land, by the first will; the testator having subjected his real estate to the payment of his debts and legacies. Lord Hardwicke.-" I am of opinion, that the lesser legacies given by the second will, are chargeable upon the lands devised by the first. Consider them first as new original legacies: the second will is a complete |