
    Lewisburg.
    Croft & als. v. Croft ex'or &c.
    
    (Absent Brooke, J.)
    1847. July Term.
    
    By the act 1 Rev. Code, ch. 104, § 11, p. 377, a devise or bequest, whether of real or personal estate, to an attesting witness to a will, without whose testimony the will may not be otherwise proved, is void.
    
    This was a motion in the Circuit Court of Augusta county to admit to probat the will of Lewis Croft. The motion was opposed by Daniel Croft and others, next of kin of Lewis Croft. There were two subscribing witnesses to the will, to one of whom the testator devised a tract of land ; and the only question involved in the case was whether he was a competent witness to prove the will. The Court below held he was a competent witness; and upon his testimony, and proof of the handwriting of the other subscribing witness, who was dead, admitted the will to probat; and the contestants having excepted to the opinion of the Court admitting the devisee in the will to testify, applied to this Court for a supersedeas, which was granted.
    
      Stuart and Fultz for the appellants,
    referred to the language of the act, 1 Rev. Code, ch. 104, § 11, p. 377, and insisted that the terms “bequest” and “legacy,” therein used, were applicable only to personal estate; and that the act did not make void a devise of land. They referred to the other sections of the act to shew that these terms “devise,” “bequest” and “legacy,” are throughout the statute used in their proper and legal sense; “ devise” being made applicable to real, and “ bequest” and “ legacy” to personal estate. They said this was true throughout the statute with one sinexceP^on *n § 10) where it is said — “ No will in writing, nor any devise of chattels shall be revoked,” &c.
    They referred to the act of 25 George 2, ch. 6, passed 24th June 1752, the language of which was much broader than ours. That statute had been held in England as referring exclusively to devises of real estate, and as having no application to legacies of personalty. Brett v. Brett, 3 Adams’ Eccl. R. 210. And although the contrary doctrine was held in Lees v. Summersgill, 17 Ves. R. 508, yet that case had been since overruled, and the decision in Brett v. Brett, sustained. Emanuel v. Constable, 3 Cond. Eng. Ch. R. 472; Foster v. Banbury, 5 Id. 20. This act was by the 11th section made applicable to the colonies. It thus became the law of Virginia, and so continued until 1789, when our act was passed repealing all British statutes. And they insisted that our act, which was first enacted in 1785, when the British statute was in force in Virginia, was intended merely to supply the omissions in that act by extending its provisions to bequests of personalty : and in this way it was to be accounted for that the provision of the statute was limited to bequests of personal property.
    
      Michie, for the appellee,
    referred to the opinions of Judge Tucker, 1 Tucker’s Com. part 2, p. 294, and of Judge Lomax, 3 Lomax Dig. 44-5, both of whom concur in the opinion that the act embraces devises of real estate. He insisted that the mischief intended to be remedied required that the act should be thus construed; and that its language authorized the construction. The first clause of the 11th section, he insisted, alone applied to the question whether the witness was competent; and this question could not be affected by the construction which might be given to the latter clause. This first clause uses the term “ bequest,” and to limit the construction of the act to bequests of personal estate, in opposition to the objects and purpose of the statute, he insisted that it was incumbent on the counsel on the other side to shew not only that the term “bequest” is more applicable, or is oftener applied to personal than to real estate, but that it is not properly applicable to real estate at all; for if a devise of land can properly be denominated a bequest, then it is embraced in the terms of the act, which says, “any bequest.” He then referred to various definitions given of the words “devise” and “bequest,” and deduced from them the conclusion that the word “ bequest” may in strict legal use be applied to land, whilst the word “devise” may, with the same strictness, be applied to chattels, of which there is an instance in the 10th section of the act which speaks of a devise of chattels.
    
      
      
         The act says: “ If any person shall subscribe his or her name as a witness to a will, wherein any bequest is given to him or her, if the will may not be otherwise proved, the bequest shall be void, and such witness shall be allowed and compellable to appear, and give testimony on the residue of the will, in like manner as if no such bequest had been made.”
    
   Baldwin, J.

delivered the opinion of the Court.

The Court is of opinion, that by the true construction of the statute concerning wills, 1 Rev. Code, ch. 104, § 11, p. 377, a devise or bequest, whether of real or personal estate, to an attesting witness to a will, without whose testimony the will may be not otherwise proved, is void; and therefore that the said Circuit Court did not err in overruling the objection to the competency of the witness Samuel Croft. It is therefore considered by the Court that there is no error in the sentence and order of the said Circuit Court admitting the paper writing, in the proceedings mentioned, purporting to be the last will and testament of Lewis Croft, to probat, as and for such last will and testament; and that the said sentence and order be affirmed : and that the defendants in error recover against the plaintiffs in error their costs about their defence in this Court expended.  