
    Daniel Rucker et al. vs. Samuel H. Lambdin and Daniel Smith, Executors of Peter Rucker, deceased.
    Whatever doubts may once have existed in England upon the subject, it is at this day settled, that the word “ credible” in the statute of wills, means competent, and that the question of competency, relates to the time of attestation.
    Under the statute of this state, (Hutch. Code, 651,) which provides that, if any person shall be a subscribing witness to a will, wherein any devise or bequest is made to him, and the will cannot be otherwise proved, such devise or bequest shall be void, and he shall be compelled to appear and give testimony on the residue of the will, a direct legatee under a will, who is a subscribing witness, is competent to give testimony in behalf of the will.
    Two of the subscribing witnesses to a will, were direct legatees, and also named as executors in the will; the will was proved, and they qualified as executors; afterwards upon an issue devisavit vel non, it was held, that the executors were competent witnesses to prove the will; not being disqualified by the commissions to which they were entitled by law as executors, and the direct legacy to them being void under the statute.
    The right of an executor to commissions, does not accrue till the performance of services; and the allowance to him is not made until the final settlement of the estate or the close of the administration ; when they are allowed upon the whole estate administered ; and if, in point of fact, the executor do not administer the estate, he is entitled to no compensation.
    The testator, by a clause in his will, provided as follows : “ I wish the property which I bequeath and bestow on Sarah A.. Truly, to be given and secured to herself and her bodily heirs, should she marry, and at her death, should she have no issue, it is to go to her brothers and sisters ; ” held, that this was not an estate tail, but an executory devise, coming within the provisions of the statute of this state, (How^ & Hutch. 349, sec. 26,) in regard to that species of limitation, and protected by it.
    Therefore, the sister of Sarah A. Truly would have such an interest in the property bequeathed, as to disqualify her hushand who had intermarried with her since the act of 1839, securing the property of the wife to her sole and separate use, from being a competent witness to prove the will, as one of the subscribing witnesses thereto.
    Where a man’s wife, since the act of 1839, known as the woman’s law, is a legatee under a will of either real or personal property ; and he is also a subscribing witness thereto, the legacy becomes her sole and separate estate, and does not fall within that provision of the statute, which declares a legacy or bequest to a witness to be void ; yet on the general principle which excludes a husband from testifying in a matter in which his wife has an interest, he will not be a competent witness to prove such will, to which he was a subscribing witness.
    A testator by the fourth clause of this will, provided as follows : “ I will my executors to pay the necessary expenses of supporting my cousin Sarah A. Truly, until my estate is able to purchase a girl and boy negro slaves to wait on her ; and after that, should she live, I wish my executors to purchase and give her six young negroes, whenever my estate is able so to do. I wish the property which I bequeath and bestow on Sarah A. Truly, to be given and secured to herself and her bodily heirs, should she marry, and at her death, should she have no issue, it is to go to her brothers and sisters ; ” by the sixth clause of his will, the,-testalor constituted Sarah A. Truly one of his residuary legatees, both of his land and personalty, in these words, viz : “ the balance of my property to be divided between Sarah A. Truly and Mrs. Martha Truly held, that the general words in the fourth section were to be transferrred to the sixth, and were broad enough to apply to every disposition contained invthe will in favor of Sarah A. Truly ; and there was therefore a valid executory devise over to the sisters of Sarah A. Truly of the realty devised to her in the will.
    It is necessary to the due and proper execution of a will, that the witnesses should attest it in the presence of the testator.
    ON appeal from the probate court of Adams county; Hon. Charles Lo Dubuisson, judge.
    Daniel Rucker, William Rucker, and Jonathan Rucker, heirs at law of Peter Rucker, deceased, filed their petition in the probate court, in which they allege, that at the December term, 1844, an instrument purporting to be the will of Peter Rucker, witnessed by John H. Collier, Samuel H. Lambdin, and Daniel Smith, was exhibited for probate by William Bisland and Lambdin and Smith, the executors named therein, and probated on the testimony alone of Collier; that Smith and Lambdin are named executors and legatees, and are witnesses to the will, and they have not renounced their interest as legatees; that on petition of Smith and Lambdin letters testamentary were granted to them; that it is not the will of Peter Rucker, but was obtained by fraud and collusion; that the probate of the will was obtained by fraud, surprise, and undue advantage; at the time of making the will, Peter Rucker was not of sound and disposing mind; it was not attested by the witness according to the statute; at the time the will was made, Peter Rucker was greatly importuned, unduly influenced, entreated, urged, and solicited to make his will; that the will is uncertain, repugnant, void and insufficient; and prays citations against the executors and legatees, and an issue devisavií vel non.
    
    The will is an exhibit; the only clauses necessary to notice are as follows, viz :
    
      “ Item 4. I wish my executors to pay the necessary expenses of supporting my cousin Sarah A. Truly until my estate is able to purchase a girl and boy negro slaves to wait on her, and after that, should she live, I wish my executors to purchase and give her six young negroes whenever my estate is able so to do; — I wish the property which I bequeath and bestow on Sarah A. Truly to be given and secured to herself and her bodily heirs should she marry, and at her death, should she have no issue, it is to go to her brothers and sisters.”
    The 5th item contained a devise to Smith, or in the event of his death, to Lambdin.
    “Item 6. I request that my- land and negroes, stock, &c. may be kept together until the death of my brothers Daniel, William and Jonathan, (excepting the servants before named,) and all my debts being paid off, then I wish ten of my negroes to be given to John Rucker Bisland, so divided as 'not to interfere with the family connections of the negroes ; and the balance of my property to be divided between Sarah A. Truly and Mrs. Martha Truly.”
    The 9th item nominated William Bisland, Daniel Smith, and Samuel H. Lambdin as executors.
    Citations issued, were served, and the defendants answer and admit the heirship of petitioners and the presentation and probate of the will; but deny all the other allegations, of the petition except as to the legacies to the executors, and demur to that portion of the petition.
    The probate court ordered an issue devisavit vel non to the circuit court of Adams county.
    From the bill of exceptions it appears that the following proceedings took place in the circuit court, after the issue was made up in that court, before the Hon. Thomas A. Willis, viz : The plaintiffs in support of the bill offered the certificate of the oath of Collier in the probate court where the will was probated, which states that Peter Rucker signed, sealed and published said instrument as his last will, &c. on the day of the date, in presence of deponent, Smith and Lambdin ; that testator was of sound and disposing mind, and over twenty-one years of age, and that deponent, Smith and Lambdin subscribed as attesting witnesses in the presence and at the request of testator, and in presence of each other ; also the affidavits of Smith and Lambdin indorsed on the will, which are the same in substance as that of Collier; to which defendants objected, on the ground that they were incompetent testimony; it having been admitted that Collier was, at the time of attesting the will, the husband of one of the sisters of Sarah A. Truly; and that Lambdin and Smith were executors and legatees mentioned in the will, and had taken out letters testamentary thereon; and defendants also read, in support of the testimony, to the court the petition, answers and proceedings in the probate court. The court overruled the objection, and permitted the affidavits to be read.
    The plaintiffs then introduced evidence, tending to show the sanity of testator’s mind at the time of the execution of the will. And the defendant introduced evidence tending to show the contrary. Neither of which need be'here stated.
    
      The plaintiffs moved the following instructions.
    1. The devise in the will to Sarah A. Truly conferred an estate tail, which, by operation of the statute, became an ,estate in fee simple, and the devise over to the brothers and sisters of Sarah A. Truly is void ; therefore, the witness, Collier, had not an interest in the estate devised, and was a credible attesting witness.
    2. The testimony of Lambdin and Smith, although legatees and executors, as taken before the probate court, is competent evidence for the consideration of the jury, who are the exclusive judges of the weight and credibility of their evidence, although the judge of probate may have founded the decree establishing the will on the evidence of another witness.
    3. A legacy to the attesting witnesses to a will is void, if the evidence of such witness is necessary to prove the will; consequently, such witness is competent to testify, unless he became interested subsequently.
    4. When the attesting witnesses cannot be examined as witnesses on the trial, either because they are dead, beyond the jurisdiction of the court, or have subsequently become incompetent to testify, it is sufficient to prove their signatures, and the signatures of the testator. The attestation of the witness is of itself prima facie evidence that the will was duly executed and signed in the presence of the witnesses, at his request, and in his presence, and that the testator was of sound mind and memory sufficient to make a will.
    5. It is not the duty of the devisees and legatees to prove by direct evidence all the facts necessary to establish a will; but the capacity of the testator at the time, and that the will was his voluntary act, are to be presumed. It is also to be presumed that the subscribing witnesses subscribed the will in the presence and at the request of the testator.
    6. It is not necessary that the witnesses should certify on the face of the will, that they attested in the presence of the testator, nor is it necessary that such fact shall be stated on the face of the will.
    
      7. It is not necessary that the testator should request witness to attest to his will.
    
      8. Mere weakness of understanding or imbecility, which does not materially impair the judgment, does not render the testator incompetent to make a will.
    9. If the jury believe that the testator, at the time the will was written, had sufficient soundness of mind to direct the disposition of all his property, by directing separately the disposition of one piece of property at a time ; or by directing what legacies should be given to one legatee at a time, then he was of sound and disposing mind.
    10. If the jury believe the testator was fully competent to understand each devise, when rea& to him separately, and had sufficient memory and judgment to know at once whether it was written as he wished or not, he Was competent to make a will.
    11. Although a will may be obtained by solicitation, and dictated by the party for whose b^aeiit it is made, if there be no fraud, or undue influence, suclnwill is not void.
    12. If the jury believe one of the attesting witnesses was incompetent at the time the will Was^executed, but that two other witnesses were competent, and that the will was properly executed, it is a good will to carry the'personalty.
    These instructions the court gave and defendants excepted.
    Defendants asked the following charges:
    1. If the jury believe, from the evidence, that John H. Collier was, at the time of the execution of the will, and at the time of the probate thereof, the husband of "one of the sisters of S. A. Truly, to whose brothers and sisters the devise over is made, in the fourth and sixth clauses of the will, then said Collier was incompetent to attest the will, and incompetent at the time of probate to prove the same.
    2. If the jury believe, from the evidence, that the executors Lambdin and Smith, are the same persons who are made legatees in the fifth clause of the will, and that the will was admitted to probate on the testimony of Collier alone, and not upon the affidavit of or testimony of Lambdin and Smith ; then said Lambdin and Smith were at the time of said affidavit entitled to their legacies under the will, and their affidavit offered in evidence now is incompetent testimony, and ought to be disregarded by the jury.
    3. That it is necessary, for a due and proper execution of a will, that the witnesses should attest it in the presence of the testator; that the fact must be proven in this issue by competent testimony to the satisfaction of the jury; and if the jury are not satisfied of this fact, from the evidence, they must find against the validity of the will.
    4. That the will does not purport on its face to have been attested in the presence of the testator, and the proof of the handwriting of the subscribing witnesses is not sufficient to prove its legal execution, unless the subscribing witnesses are dead.
    5. But if the jury believe, from the evidence, that at the time of the execution of the will, the testator was imbecile in mind, and incapable of dictating the substantial dispositions of the will, or of recollecting one disposition after another was compienced, and that the substantial provisions and dispositions were first suggested to the testator by the persons who are legatees, devi-sees and subscribing witnesses in the will; the jury are authorized to consider these as suspicious circumstances, and, if they so believe, to find the will invalid.
    Which instructions the court refused to give, and defendants excepted.
    A second bill of exceptions shows that Lambdin was called as a witness to testify to the execution of the will, and on voir dire stated he was the subscribing witness, one of the executors, and a party to the cause; the plaintiffs then proved that they had deposited one hundred dollars unconditionally to pay the costs; and also that the costs did not amount to that sum ; and offered to deposit such further sum for payment of costs as the court might direct. The defendants objected to the witness because he was interested and incompetent; which objection was sustained, and plaintiffs excepted.
    The jury found in favor of the will; their verdict and the proceedings in the circuit court were reported back to the probate court; and the latter thereupon dismissed the petition, and the complainants therein appealed.
    
      
      L. Madison Day, for appellants.
    The law has wisely placed the subscribing witnesses around the testator, as a guard for the prevention of fraud and imposition, and to secure to the public the due execution of one of the most important acts of a man’s life., 4 Dess. Ch. Rep. 283; Ld. Camden’s opinion, l Day’s Rep: 41, 89, in note; Swift’s Ev. 66 : 3 Porter’s Rep. 60; 3 Mass. 237; lb. 330; 7 S. & R. 90, 92; 4 Mass. 593; 4 Conn. 203.
    The word “credible,” then, in our statute means competent, and this competency must exist at the time of attestation; otherwise the will is not well executed, and consequently void. 2 Greenl. Ev. 377, § 691, and note 2; Ld. Camden’s opinion, 1 Day, Rep. 41, 88, in note; Swift’s Ev. 65-68; 17 Pick. 134, 135 ; 9 lb. 350; 4 Dess. 279; 2 Bail. 24; 2 Strange, Rep. 1233; 1 Jarm. on Wills, 64; 1 Phil. Ev. 494, 496 ; 4 Day’s R. 31; 1 Rich. Rep. 534; Mod. Prob. Wills, 475, 488; 12 Mass. 339, 361; 3 lb. 219, 229; 23 Pick. 16, 19.
    John H. Collier, therefore, being the husband of one of the legatees and devisees in remainder after a life estate, was an incompetent attesting witness. Hall v. Hall, 17 Pick. 378; 3 Wash. C. C. Rep. 581, 582; 1 Jarm. on Wills, 65; Lessee of Snyder v. Snyder, 6 Binn. Rep. 488; Hatfield v. Thorp, 5 Barn. & Aid. 589; 7 Eng. C. L. Rep. 199; Doe v. Tyler, 6 Bing. R.. 390; 19 Eng. C. L. Rep. Ill, 113; Moore v. McKie, 5 S. & M. 238, 243 ; 1 Greenl. Ev. 458, § 391; Swift’s Ev. 59 ; 1 Day’s Rep. 77, 80, in note; 5 J. J. Marsh. 268, 269 ; 2 Day’s Rep. 399; lb. 403; 1 Rich. Rep. 268; 3 Watts, 110; 6 Monroe, 620; 2 Phil. Ev. Cow. <fe Hill’s ed. 114, 115, note 108'; 3 G. & J. 25; Swift’s Ev. 58; 7 Halst. 240; 5 J. J. Marsh. 174; 3 Phil. Ev. 1539, n. 108; 2 Day, 466 ; 2 Bibb, 466, 467; 7 Met. 363, 376-, 379; 3 T. R. 88, 93, 95 ; Willes’ Rep. 211, 213; 5 N. Hamp. R. 416; 1 Jarm. on Wills, 43, n. (1); 2 Strange, 1254; 1 Greenl. Ev. 405, § 334, 335; 4 D. & E. 678, 679; 3 Bouv. Bac. Abr. 475, 476.; 1 Greenl. Ev. 411, § 341; 6 J. J. Marsh. 55; -1 Greenl. Ev. 406,. § 334, 335; 13 Pet. 223.
    The statute, H. & H. 38S, sec. 15, avoiding a devise or bequest to a subscribing witness, does not apply where the husband is a subscribing witness, and his wife a legatee and devisee. Hatfield v. Thorp, 5 Barn. & Aid. 589; 7 Eng. C. L. Rep. 199; 1 Jarm. on Wills, 65; H. <& H. Dig. 332, sec, 22, 23, 24.
    The devise and bequest to Sarah A. Truly is not within the rule in Shelley’s case, and the limitation over to her brothers and sisters, one of whom was Collier’s wife, is good by way of executory devise. 7 Har. & J. 237 - 239, 244, 245; Doe v. Wetton, 2 Bos. & Pul. 324; 1 Gall. 454, 466; 7 D. & East, 100 ; 1 Stew. 536, 542; 2 Jarm. on Wills, 506, 507; 9 Alab. R. N. S. 716 ; 6 S. & R. 29; 7 Cranch, 456; 5 Binn. 252 ; 2 Mass. 554; 1 Bar. & Aid. 713; 5 Bos. & Pul. 38; 9 East, 366; 1 F. C. Rem. by Smith, 419; 2 Day, 52; 1 Jarm. on Wills; 793, n. (1) ; 2 Hill, S. C. R. 443; 1 Dess. 271; 4 lb. 316, 318 ; 2 Dev. 6 Bat. 500; 1 Ib. Eq. Cas. 466, 468 ; 4 Monroe, 22; 2 Jarm. on Wills, 419, note (g) and (2); 1 Denio, R. 167, 168; 23 Pick. 287, 294; 2 Jarm. on Wills, 506, 507; Cro. Jac. 590; 1 Car. Law Repos. 544; 1 Call, 294; 4 Iredell, 53, 56; 1 Bail. Eq. 48; 7 D. & East, 320; 2 Dev. & Bat. Eq. C. 353, 356; 3 Iredell, Eq. 233; 1 Bay, 80; 2 S. & R. 59; 3 Binn. 139; 12 Wend. 83; 1 Prest. Est. 248 - 265; 8 S. & M. 462.
    The commissions allowed by statute to executors and administrators, create an interest in the appointment, and the executors, Lambdin and Smith, were incompetent attesting witnesses. Taylor v. Taylor, 1 Rich. R. 531, 536, 549; 5 Iredell, 161, 168, 169; 11 S. & R. 208, 218; 15 lb. 240; 5 J. J. Marsh. 656; 3 Rich. 355 ; 7 B. Monroe, 48; 4 Hawks, 141; 1 Greenl. Ev. 458, $ 341; Swift, Ev. 54; 1 Greenl. Ev. 461, § 392 ; lb. 411, § 347; lb. § 386, 390, 391; Swift, Ev. 58, 59; 23 Pick. 18,19; 13 Mass. 321, 340; 2 Phil. Ev. 108, 114.
    Neither the commissions nor the office of executor are a devise or bequest, and the executors’ competency is consequently not restored by our statute avoiding a devise or bequest to a subscribing witness. ' 1 Rich. R. 534; 12 Mass.'368, 371; 5 Ired. 165, 169; 12 East, 250; 6 State Lib. Ed. 441, 442.
    The terms devise and bequest are technical terms in the law, signifying a gift of real or personal estate by will. 1 Bouv. Die. tit. Devise and Bequest; 2 Bl. Com. 512, 513.
    And where a statute uses technical terms, which have a known signification in the law, they are to be understood in the statute in the same sense in which they are in law, and no other. 6 Mod. 143; Dwarris’s St. .696, 702; 3 Murph. 314; 5 Humph. 394; 10 Peters, R. 137; 1 Wash. C. C. 463 ;„1 Bald. 505. See Doug. 341.
    The statute does not avoid a consequential interest or an interest thrown upon the witness by operation of the law. 1 Jarm. 64; 1 Pow. on Dev. by Jarm. 19 Law Lib. 69; Hatfield v. Thorp, 5 Barn. & Aid. 589; 7 Eng. C. L. R. 199.
    The executors, therefore, were not good attesting witnesses.
    
      McMurran, on behalf of the appellees,
    Insisted, that all the subscribing witnesses were competent at the time of their attestation of the will.
    1. If the wife of John H. Collier took both real and personal estate under the will, our statute, which renders void devises and bequests to subscribing witnesses, extends to the interest of Mrs. Collier, and avoids it for the purpose of rendering him competent. This principle springs from the relátion or unity of husband and wife, and is supported by authority. Jackson v. Woods, 1 Johns. Cas. 163; Jackson v. Durland, 2 lb. 314, 315; Lom. on Ex’rs, 36; 3 Rob. Prac. 355.
    Again. Collier’s wife takes no interest in the real estate, and he is at least competent as to the land. The only legacy to her is contained in the fourth clause of the will, and that is confined to negro slaves. It would be a forced construction of the will to determine that she takes-an interest under the sixth clause, in which he disposes of the residue of his estate, and where she is not mentioned, the same as she does under the fourth clause.
    2. Are the executors competent attesting witnesses to the will? At common law they certainly are. In the language of Lord Ellenborough, “the executor takes no interest under the will, but only a burthensome trust.” Bettison et al. v. Bromley, 12 East, R. 250; Lowe v. Joliffe, 1 Bl. R. 365.
    
      But it is insisted that the executors are incompetent, as they, like administrators and guardians, are entitled to compensation for their services in the administration of the estate. To this we have two answers, the court having decided that the competency depends on the witness being so at the time of attestation.
    In the first place, this compensation is not given by the will, but by the law of this state, arising for services rendered, after the probate of the will, after the grant of letters, and discretionary with the probate court. The will but nominates them to a “burthensome office.” At the time of executing the will* or even probating it, the executors have no more interest than an administrator with the will annexed would have in the previous proof of the will. If an executor had, under the will, any thing beyond a naked office, a personal trust, on his death, before services rendered, his representative would be entitled to it; but it will not be pretended that he would in such a case. It is not the will, then, but the law for services rendered after the grant of letters, which creates an interest to the extent of compensation for services, not in the will, but in the estate. Where-two executors are named,in the will, and one qualifies and acts, and the other does not, the latter is not entitled to any part of the compensation. Surely this is a fair test.
    The probate judge and clerk are entitled to their fees for probating a will, but surely they would not be incompetent attesting witnesses at the time of attestation.
    Suppose the executors .should have a contest with the legatees about their compensation, the will would be no evidence on the one side or the other in determining the question.
    The following authorities from different states, where compensation is allowed, support our position. Sears v. Dilling-ham., 12 Mass. R. 358, 368; 3 Con. R. (N. S.) 254; 2 J. J. Mar. Rep. 205, 331.
    Again. If the will did confer any interest or benefit on the executors rendering them incompetent witnesses, our statute avoiding “ all devises and bequests” to subscribing witnesses, restores their competency. This provision extends to every conceivable interest or benefit under the will. Take the definition from lexicographers or jurists, and these words comprehend every beneficial interest under the will. 4 Kent’s Com. 509.
    The very authorities cited by the opposite counsel from North Carolina and South Carolina, show that if the above provision of our law had existed in those states, their courts would harm decided in accordance with these views.
    
      S. S. Boyd, on same side.
    As to Collier’s interest,
    1. The limitation in the fourth clause to his wife was either a limitation in an estate tail in Miss Truly, or was an executory devise dependent on a double or too remote contingency. The first point is sufficiently noted in the briefs. The second point is sustained, in principle, by Beard v. Westcoit, 5 Taunt. 394; 5 B. & A. 801.
    The contingencies in the fourth clause are, that Miss Truly should live till the estate was able to buy six slaves, and should marry, and should die without'issue. But by the sixth clause, the whole estate was to be distributed and divided after the debts were paid, and in case his brothers were then not living. Now a .division of the estate, as directed in the sixth clause, would cut off the fund out of which the negroes named in the fourth clause were to be purchased, so that the vesting of Mrs. Collier’s interest depended not only upon the contingencies named in the fourth clause, but also upon the living of the brothers till the debts were paid, and such further time as would allow a fund to accumulate, sufficient to buy the negroes. And as these contingencies are accumulated one upon another, and the time within which they must happen is indefinite and unas-certainable, the devise to Mrs. Collier dependent on them is void, on well settled principles.
    2. Collier’s wife had no interest in the land. The fourth section only disposes of what is devised in it. The rules of construction limit the word property to what has gone before. See 1 Jarman, chapter on “estate,” “effects,” “goods,” &c. &c. The sixth section relates to the property in existence, and not to what was to be purchased under the fourth clause; and in the sixth, the balance is an absolute disposition, and not dependent on any of the contingencies of the fourth.
    3. But if the interest of Mrs. Collier was fixed in her, then, by the divisions, it would be avoided under our statutes, whenever the husband was a witness to the will, in the same way as if the devise were to the husband.
    As to Smith and Lambdin,
    1. If their interest in the commissions arose from the law, and not from the will, they are clearly competent to establish the will. Because by establishing the will they would not establish their right to commissions, which depend upon services rendered, and are the same for such services whether there is a will or not. The issue devisavit vel non has no connection with the subject of commissions. The right to commissions and the interest in them, does not arise till they are due, or till they accrue, and this cannot be till after probate of the will. And in regard to the land, the executors, as such, and by the probate of the will, have not a particle of interest.
    2. If the commissions are an interest arising under the will, as appears to be the better opinion, then our statute is broad enough to award them; and in this view, if the statute giving commissions has affixed a new incident to the office of executor, that incident is as much a part of the office of executor as any other. And when a will is made under such a law, the incident constitutes a part, and an essential and irrepealable part of the term “executor,” and the “office” of “executor.” The office, then, by its statutory definition and incidents, is no longer a “burdensome trust,” but a “beneficial interest,” and is covered by the terms of our law. The authorities from South Carolina and North Carolina Reports, will lead inevitably to this result, under a statute like ours.
    3. But if these last witnesses are incompetent, then as the incompetency, arising from commissions, did not exist at the time of attestation, but arises afterwards, we have a right to prove their handwriting, as in case of death. The authorities upon this point are clear.
    
      The words “ the devise and bequest,” in the statute, have no technical meaning. There are no such technical words, and they are used in the vulgar sense of an interest under a will. The intention of the act is to sustain wills, and to sacrifice the interests of subscribing witnesses, rather than defeat the intention of a testator. The decision already made by this court, even if wrong, which is not the case, is in favor of this object and policy of the statute, and a contrary decision would defeat this object and policy, and destroy the provisions of a will, which are in all respects just, and wise, and proper. This court would not adopt such a view, unless compelled to do so by overruling considerations of duty.
    It is objected,
    1. The commissions of an executor would abate, if derived from the will, in case of insolvency. They are fixed by law; by law became a part of the office itself, and will no more abate than the compensation of the judge and clerk of probate, or the sheriff, or overseer on the plantation. The commissions come from a part of the same law as,that which regulates the abatement of legacies, &c. The whole must be construed together; and the commissions, by their nature, cannot abate. But if they must abate, this has no effect upon the argument, which derives the commissions from the will, or from the law, independent of the will.
    2. That the office must abate in like manner as the commissions. This is absurd; for the office is a trust, and cannot be diminished by any scale of per centage.
    3. That the office must be a legal estate, and would hence go to the representatives of the executor. Non constat; for it is but a personal confidence or trust, and extends only to the lifetime of the executor.
    Montgomery, on same side.
    1. The affidavits were admissible under the statute H. & H. 389, sec. 17.
    
    2. The estate devised to Sarah A. Truly is an estate tail under the statute H. & H. 348, sec. 24; 3 Bac. Abr. tit. Estate in Tail, (Bouvier’s edit.) 428.
    
      If donor of an estate in tail give remainder to his own right heirs, the gift at common law was void, for it cannot vest immediately, quia non est lucres viventis. Hence the necessity for this provision of the statute. 3 Bac. Abr. tit. Estate in fee simple, (Bouv. edit.) 427, 428.' On this point he cited also Carter v. Tyler et al. 1 Call, R. 143; Orndoff v. Turman, 2 Leigh, R. 200; 3 Shep. Touch. 57,118, 315, 378, 469, 629 ; 3 So. Carolina Stat. 341.
    3. The subsequent section of the statute, which defines the meaning of the terms dying without heirs, &c., does not militate against this construction. H. & H. 349, sec. 26.
    The limitation mentioned in that section is not necessarily a limitation over after failure of issue in tail. It might be so in the instance covered by the proviso to sect. 24. But such contingent limitations may exist in many cases where there is no estate tail, for instance, a gift for life to A., remainder to the heirs of the body of B., and in default thereof to C. and his heirs, &c. Now if B. dies leaving a widow, who has a child within ten months after.his decease, such child will come within the statute.
    Again, gift in special tail to A., remainder to right heirs of donor. If A. die without heirs living at the time of his decease, or born within ten months thereafter, the remainder over will take effect.
    Thus the provisions of sect. 26 have a foundation to rest upon without restoring entails, which are docked by the 24th section.
    4. As to the objection to Smith and Lambdin.
    1st. As to the legacies; they are void by statute H. & H. 388.
    2d. As to their being named executors, they were not executors until gran't of letters ; according to our law, they could have had no interest.
    This question has been repeatedly decided in England and America, and uniformly in favor of the competency of the witness. They might have been incompetent to testify on the trial of the issue because they were liable for costs ; but of that more hereafter. The probability that they might earn and receive commissions for administering the effects, is not such an interest as will exclude the witness. Comstock v. Hadlyme, 8 Conn. R. 260; Sears v. Dillingham, 12 Mass. R. 362, 369; 3 Stark. Ev. 1690-1693; Bettison v. Howe, 1-2 East, R. 250, in 6th vol. East, in Library, 441; Willings v. Consequa, 1 Pet. C. C. R. 307; Steel v. Phoenix Ins. Co. 3 Binn. R. 311.
    5. Lambdin was improperly excluded as a witness on the trial of the issue.
    His being executor, and a party to the suit, were no grounds for excluding his testimony, unless he was liable for the costs of the issue. To obviate this last objection, the costs were fully paid. See the cases cited above from 8 Conn., 1 Pet. C. C. R., and 3 Binn. R.
    Judge Montgomery also reviewed at length the charges given and refused on the trial of the issue, and insisted there had been no error committed.
    
      George S. Yerger, for appellants, in reply.
    1. The third and sixth instruction asked by defendants and refused by the court, were clearly erroneous. The statute requires the subscribing witnesses to attest in the presence of the testator, and that fact must be proved. 1 Jarm. on Wills, 74.
    2. Were the witnesses to the will competent 1
    
    The devise in the fourth clause of the will, and in the sixth explained by the fourth, is an executory devise of both real and personal estate to Collier’s wife.
    On this point, Mr. Yerger reviewed the argument that this was an estate tail, and insisted that it was a good executory devise to the brothers and sisters of Sarah A. Truly, did not admit of a doubt. He cited 9 Mass. 282; 7 Paige, 187; 19 Com. Law Rep. Ill; 9 Ala. Rep. 716; 2 Hill, Rep. 329; 2 Bos. & Pull. 324; 7 Term Rep. 320; 2 Dev. & Bat. 354; 8 S. & M. 462; Pells v. Brown, Cro. James; 2 Bos. & Pull. 327; .and many other cases.
    3. If either Collier or his wife had an interest, he is excluded. He, as her husband, was disqualified. 1 Greenl. Ev. 341; 4 Dur. & East, 678; Jarm. on Wills, 64; 5 S. & M. 243.
    
      That an executory devise or contingent interest disqualifies, is well settled. 19 Com. Law Rep. Ill; 17 Pick. 373; 9 Ala. Rep. 716 ; 3 Wash. C. C. Rep. 680; 4 Iredell, 53; 2 Halst. 68 ; 4 Dess. 279 ; Swift’s Evid. 58.
    4. Here then is a legacy to Collier’s wife; he is incompetent, and was at the time of attesting, unless our statute H. & H. makes her devise or bequest void.
    The statute is plain and unambiguous; it says where the legatee or devisee is a subscribing witness, the legacy shall be void. Collier’s wife is not the attesting witness. The statute has not provided for such a case. Collier has an interest, not as legatee, but as husband; his interest is consequential, it is mediate, and as a consequence of being husband to the legatee.
    . 1 Johns. Cases, 163, and 2 lb. 314, are relied on to show the devise to the wife is void; when examining these cases, the court will be found three to two ; and the case, if decided, is directly contrary to the decision of the court of the king’s bench; besides our statute gives the right to a wife to hold property distinct from her husband. See Jarman on Wills, 64, 65; Hatfield v. Thorp, 7 Com. Law Rep. (5 B. & Aid. 589.)
    Mr. McMurran says the latter case does not decide the point. The case shows it was the execution of the will, not whether the devise was void, which was decided.-
    The reporter in his note states it is so; and the English parliament so understood it, for they immediately passed the statute 1 Yictoria, and cited Jarman on Wills, 65; and such is the opinion of this court on the first argument of this case. It is, I think, conclusively shown that Collier was incompetent, both as to personalty and'realty, but without doubt as to the personalty.
    5. Are the executors, by reason of the commissions allowed them by law, incompetent? and were they so at the time of attesting?
    If any thing could be settled, this is. The question has been directly presented to five different courts, and they have all unanimously decided they are incompetent. 1 Rich. Rep. 531; 4 Hawks, Rep. 140; 5 Iredell, 169; 11 Serg. & Rawle, 218; 15 lb. 240.
    
      It has been argued that it is contingent, depending on his acceptance, performance, &c. So of all legacies or interests devised under a will; the will may be revoked, the condition of the legacy may never be performed, or the will may not be proved. .Upon this point, see Frost’s opinion, 1 Rich. Rep. 536, 549, concurred in by all the judges on this point, although they divided as to whether Geo. 2 was in force or not. See p. 550, for concurrence of Johnston and Duncan and O’Neill; p. 554, that Johnston, chancellor, and Richardson concurred; p. 554, that Evans and Butler concurred; p.559, 565, that Wardlow concurred.
    6. Does our statute H. & H. take away his interest?
    That statute makes void the devise or bequest to the witness; and the question is, whether appointing a man an executor is a legacy or bequest.
    This case has been argued upon the-supposition, that all beneficial interests derived from a will are legacies or bequests; and much confusion and uncertainty have arisen by confounding our statute with that of 25 Geo. 2, where the provisions of the two statutes are wholly different.
    A man may derive a beneficial interest, or take a beneficial interest by a will, without that interest being either a devise or bequest.
    Beneficial interests under a will are of two kinds — direct, or such as derive their whole force by operation of the will itself, by direct transfer; and mediate, or consequential, which, though beneficial, are given by law in consequence of the particular character of the party, as husband, wife, creditor, executor, or trustee, to whom the interest is derived.
    A consequential interest and an interest given by law is the 'same thing. The interest given by law is always an interest under some will, deed, grant, &c. Let me illustrate this by a few cases.
    1st. Lands are not liable by common law to pay simple contract debts; a testator charges his land with the payment of these debts. Now here is no devise or bequest to the simple contract creditor; he has no legacy, but he has a beneficial interest under the will. He has no direct interest, as the land is not transferred to him, therefore he is not a legatee; but he has a beneficial interest, in consequence of being a creditor. His interest is consequential, depending on the fact of being creditor. Would such an interest be embraced in our statute, which avoids bequests •and devises ? No one would so contend.
    2d. Again, by the common law a man makes his debtor exern-utor; this, unless wanted to pay debts, extinguishes the debt. Here is no legacy, no bequest. 3 Bac. Abr. 432.
    3d. So of the undisposed residue of the personal estate; unless a contrary expression is on the face of the will, the executor takes it. But is it a legacy, or bequest? It is certainly an interest. The interest is only the consequence of being executor. See 2 Wms. on Exec. 1050, 1051; 2 Black. Com. 434; 1 Rich. 536.
    4th. A devise of lands is made to the wife of A. Here is no devise to A; he is no legatee, but he takes a beneficial interest under the will, because, if he has children, he is tenant by the curtesy; or if none, takes an interest during their joint lives.
    5th. So if the law gives to all trustees certain perquisites for executory trusts — a devise to A as trustee for B — A has no beneficial devise or bequest; but he has an interest as trustee, an interest under the will, bnt not a legacy. It is consequential on sustaining the character of trustee.
    6th. So appointing A executor is not a bequest of any thing. It is merely a request to execute his will; but if the law gives him, as executor, commissions, he, by virtue of his office, takes a beneficial interest under the will; but it is not a legacy, it is a consequentive interest — consequent upon his sustaining the character of executor.
    7th. But what clearly proves it is not a legacy 7
    If the law is repealed, he gets nothing. Can the legislature take away legacies ? The will takes effect at the death of the party; the rights of legatees are then fixed.
    Again, if at the death of the testator there was no law allowing them, but before qualification a law was passed allowing them, he would be entitled, but it would not be a legacy; because, to be a legacy, it must have been one at the death of the testator.
    Sth. We cannot add to the statute; the words used have a well known meaning. Bequest and legacy are synonymous; it means a direct transfer by force of the will itself of goods, &c. to the legatee. See 2 Black. Com. 429; Bouv. Law. Diet., tit. Legacy.
    9th. But the whole court in the case in 1 Richardson, explicitly decide this very point. They decide explicitly it is not a legacy, but is a beneficial interest by virtue of the appointment as executor.
    Frost, J. delivered the opinion of the court. See 1 Rich. R. 533, 534. But although he decides it is not a legacy or bequest, he decides it is a beneficial interest under the will. There is not a member of the court that pretends it is a legacy, but that it is a beneficial interest.
    The misapprehension of counsel has been in confounding out-statute with that of the 25 Geo. 2. The court, in 1 Richardson, all decide if Geo. 2 was in force, and applied to personal property, it would avoid the bequest. But why do they do so 1 Because they decide the commissions, although not a legacy, yet are a beneficial interest; and they decide that the statute of Geo. 2 not only avoids legacies, but all beneficial interests derived under the will. The statute of Geo. 2 is wholly different from ours; it avoids all beneficial interests, given or made, i. e. created by the will; ours only avoids legatory interests. See stat. Geo. 2, cited in 1 Rich. R. 537.
    That this is the ground the court puts it on, see pp. 543, 545, 547, 549.
    Johnson and Duncan concurred.
    O’Neill- simply decides, that witness is incompetent, and stat. of Geo. 2 not in force.
    Evans decides, that the office of executor is a beneficial interest, not a legacy or bequest. In which Butler concurs, p. 554.
    Wardlow says, the office is a valuable right, an interest like that in the surplus. P. 565, 566.
    
      7. It is admitted, that if the legislature had thought of it, they would have enlarged our statute. Their omissions cannot legally, as I think, be supplied by the court. See 1 Rich. 549 ; Dwarris, 702, 703.
    A case omitted by the legislature cannot be supplied by the court. 1 Term Rep. 32, 52.
    If the office of executor is not a bequest or legacy, although a .consequential or beneficial interest, embraced by the statute of Geo. 2, but not in ours, as legacies and bequests are only avoided in ours, how can the court avoid the office, if not embraced in the words of the statute 1
    
    This case was submitted upon elaborate oral as well as written arguments, and the lower court delivered an opinion adverse to the appellants. They filed a petition and argument for a rehearing; which was granted by the court, when the case was again argued at great length.
   Mr. Justice Clayton

delivered the following opinion of the court.

Since the re-argument of this cause, we have bestowed upon it a patient investigation, and shall proceed to state the result.

Whatever doubts may once have existed, upon the subject in England, it is at this day settled, that the word “credible,” in the statute of wills, means competent, and that the question of competency relates to the time of attestation. 1 Jarm. on Wills, 62; Windham v. Chetwynd, 1 Burr. 414; Hindson v. Kersey, 1 Day, 41, notes; 4 Burn's Ec. Law, 27; Brograve v. Winder, 2 Vesey, Jr. 634; Amory v. Fellows, 5 Mass. 219; Taylor v. Taylor, 1 Rich. 531; Hawes v. Humphrey, 9 Pick. 350.

In this case it is insisted that the attesting witnesses to the will are all incompetent, by reason of interest under the will. Two of them are appointed executors. To them a legacy is given, and by virtue of our statute law, they are also entitled to commissions, as compensation for their trouble in executing the will. The wife of the other subscribing witness is a legatee under the will.

, To consider first the competency of the executors. The direct legacy to them does not prevent their giving testimony. Our statute provides that, “ If any person shall be a subscribing witness to a will, wherein any devise or bequest is made to such subscribing witness, and the will cannot be otherwise proved, the devise or bequest to such witness shall be void, and he or she shall be compellable to appear, and give testimany on the residue of the will, as .if no such devise or bequest had been made.” Hutch. Code, 651. There is no room for doubt upon that head. Upon the other part of the question, the effect which the right to commissions has upon their competency, there is much more difficulty.

On the one side, it is urged that the commissions are neither a devise nor a bequest, that they do not fall within the scope of of the statute just cited, and that the executors are not relieved from incompetency by its provisions. On the other hand, it is insisted, that the case falls within the spirit and intention of the statute; and even if it does not, that they are competent by the general rules which govern it.

There is great want of harmony in the decisions upon the subject, which will render it necessary for us to go over the leading cases. By the common law, executors were entitled to no compensation for their services and trouble. It was settled so long ago as Lord Hale’s time, that an executor having no interest in the surplus, was a good witness to prove a will. I Mod. 107; Bettison v. Bromley, 12 East, 250. As the English law gave no compensation, we need not look to their decisions for direct authority upon the point under consideration.

We proceed to examine the American cases relied on to establish the incompetency of the executor. Taylor v. Taylor, 1 Rich. 531, was a case in which the court held, that the statute 25 Geo. 2, c. 6, was in force in South Carolina, but did not extend to personal estate, and that one appointed executor, by his right to commissions, takes an interest by the will, which renders him an incompetent witness.” It will be borne in mind that the statute of Geo. 2 embodies the same provisions in substance contained in our statute above set forth; and that the English courts held it did not apply to wills of personalty, because they required no attestation. 1 Jarm. 65; Emanuel v. Constable, 3 Russ. 436.

The next is the case of Tucker v. Tucker, 5 Iredell, 161, in which the court of North Carolina expressed its regret, that the policy of the statute of Geo. 2, had not been adopted in that state; and held, “ that the executor was not a competent witness upon the trial of an issue devisavit vel non, because of his legal right to commissions on the personal estate.” From the expressions used in these two cases, it seems highly probable, that if such a statute as that of Geo. 2 had been in force in those states, the executors would have been admitted as witnesses.

Allison’s Ex’rs v. Allison, 4 Hawks, 141, decides that one appointed a trustee to sell lands under a will, and also executor, is not a competent attesting witness.

In Gebhart v. Gebhart’s Ex’rs, 15 Serg. & Raw. 235, in an action by two executors, it was held that one of them was not a competent witness, although he offered to make a deposit sufficient to cover all costs, because of his interest in the commissions on the estate. Anderson v. Neff, 11 S. & R. 208, in the same court, merely followed this decision.

■ In Gass’s Heirs v. Gass’s Ex’rs, the supreme court of Tennessee held, that the statute 25 Geo. 2, is not in force in that ■state, and that a legatee is not a good attesting witness. 3 Humph. 279.

In Sears v. Dillingham, 12 Mass. 358, the executor was held to be incompetent, because liable to costs. The court goes on to say, “ that by the common law, an executor, who is not a residuary legatee, and has no beneficial interest in the estate, maybe a witness to prove the execution of the will.” “The competency must exist at the time of attestation; a subsequent incompetency will not affect the formal execution of the will, otherwise the commission of a crime, which renders infamous, or the succession to an estate under a devise, would disable a witness who was free from crime or interest, at the time of subscribing.” “If, then, the executor was a competent witness at the time he attested the will, there can be now no legal objection to it because of his subsequent incompetency. He appears to derive no interest whatever under the will, not being residuary legatee, nor having any devise or bequest in it.”

We will now examine the cases on the other side. In Comstock v. Hadlyme Eccl. Soc. 8 Conn. Rep. N. S. 254, it was held, that an executor who has accepted the trust, and acted under the will, but derives no beneficial interest under it, is a competent witness to establish it, not being liable for costs. The point of compensation for their services was relied on, as a reason to exclude him, but the court held him to be competent, although he was entitled to payment of his expenses, and compensation for his services.” Ib. 263.

In the will of McDaniel, 2 J. J. Marsh. 332, the court said, “ an executor who has no interest in the residuary fund, and no other interest than that\>f a fiduciary, is a competent witness to prove the will, whereby his appointment is initiated.” In Kentucky, where this decision was made, the executor is by statute allowed compensation for his services, and they have a similar statute to ours, in regard to bequests to subscribing witnesses. 1 Ken. Stat. by Moreh. & Brown, 510; 2 Ib. 1541.

In the late case in regard to the will of John Randolph, of Roanoke, a question arose as to the competency of Judge Leigh, one of the executors, to testify as to the sanity of the testator. He was not a subscribing witness, but the question is the same, the incompetency of the witness by reason of interest. He was a legatee under the will, but released all interest. The case was elaborately argued in all its parts.

The court held the witness to be competent. They say, “ an executor, in his transactions as such with the world, is the representative and legal owner of his testator’s estate, responsible for its due administration, identified with its interests, and bound to assert and defend them. He cannot be a witness for himself in controversies with strangers affecting the interests thus vested in him. Nor when he is called to account as trustee, by his cestuis que trust, can he testify against them in relation to the measure' or extent of his responsibility. But what good objection can ■there be to his competency amongst the cestuis que trust themselves, or between two classes of persons, each claiming the interests rightfully belonging to cestuis que trust ? The estate which he represents is in no wise interested' in such a contest. Nor has he himself any personal interest in it.” “ As to his losing the office of executor, by a vacation of the will, it is no loss in the eye of the law, which regards it, not as a lucrative employment, but as an onerous engagement, accepted from different considerations than pecuniary emolument. His commissions are designed merely to reimburse him for his labor and expenses; and if he should lose them prospectively, he will be at the same time relieved from the services and responsibilities for which they are allowable.” Coalter’s Exec’rs et al. v. Bryan and Wife et al. 1 Grat. 87, 89.

Thus stand the decided cases. The confusion in their results proves that all of them cannot rest on correct principles.

It is very clear that the appointment to the office of executor does not disqualify. The whole current of English cases is that way. Phipps v. Pitcher, 6 Taunt. 219; Bettison v. Bromley, 12 East, 250; 3 Lomax, Dig. 45. It is the interest taken under, and derived .from, the will, that has that effect. It is the law which gives the commissions. Without the statute the executor would not be entitled to compensation. Do the commissions thus granted render the executor incompetent 1 It is not to be doubted, that the question of competency relates to the moment of attestation. If the witness be not competent then, nothing afterwards can make him so. If he be, those having a right to the benefit of his testimony cannot be defeated of that right by subsequent occurrences. The cases from 12 Mass, and from 8 Conn, clearly establish this. When, then, does the beneficial interest of the executor, which, it is insisted, excludes him, accrue ?• At the time of the attestation he has no interest, because the will confers no pecuniary benefit upon him. In this respect he differs from an executor who took the residuum at common law. At the probate of the will he has no interest, because he may renounce the trust, or be unable to give the required security. The grant of the letters testamentary confers the interest; until then, it does not exist. The attestation and the probate both precede this. The right to commissions, so far from taking effect, by relation to the time of attestation, does not accrue till the performance of services, and the allowance is not made, until the final settlement of the estate, or the close of the administration. Merrill v. Moore's Heirs, 7 How. 293. The commissions are allowed upon the whole estate administered, and if, in point of fact, the executor do not administer the estate, he is entitled to no compensation. It follows there is not that “certain, immediate legal interest” in the witness, at the time of attestation, which is necessary to render him incompetent.' 1 Greenl. Ev. 455.

It was attempted to draw, from the seventeenth section of the statute 1 Viet. ch. 26, an argument against the competency of the executor as a witness. In England, until the statute 1 Will. 4, ch. 40, the executor, in default of a residuary legatee, was entitled to the surplus, unless the testator’s intent to the contrary appeared; and this interest rendered him incompetent in cases involving the validity of the will. The statute 1 Will. 4, ch. 40, cut off this interest, by precluding the executors from claiming any beneficial interest in the undisposed of personalty, by virtue of their office. They therefore became mere naked trustees, and competent to testify, as they were previously when they took no interest under the will. The section in the statute of Victoria is as follows: “No person shall,-on account of his being an executor of a will, be incompetent to be admitted as a witness to prove the execution of the same.” This clause was evidently framed in reference to the statute of Will. 4, and to relieve the executor from the loss of his interest in the residue. This is the construction of Jarman, in his work on Wills, vol. 1, p. 66. It was not to alter any provision in the statute Geo. 2, because that had always been construed not to extend to wills of personalty. The object of the statute of Victoria was to embody all the provisions on the subject of wills in one act, and to make them extend to personal as well as to real estate. Lovelass on Wills, 274; Law Library, vol. 23.

But we do not think the commissions are a bequest, but that they are an interest conferred exclusively by the law. In Virginia, there is a statute on the subject of bequests to subscribing witnesses of wills, of which ours is in substance a copy. They have also a similar law, allowing compensation by way of commissions to executors. The case referred to in Grattan, is therefore entitled to the more weight, and in accordance with that decision, and with the general principles we have endeavored to state, we hold that the executors are competent witnesses, and that they have a right to their commissions, in the same manner as if they had not attested the will.

Their testimony will establish it as a will of personalty. The next question is, was Collier a competent witness 1 As to the personalty he clearly was not. The fourth clause of the will gives to Sarah A. Truly certain slaves, which, in case of her death without issue, are to go over to her brothers and sisters, of whom the wife of Collier was one. This is not an estate tail, but an executory devise, coming within, the provisions of our statute in regard to that species of limitation and protected by it. H. &. H. 349, sec. 26. This question is fully covered by the decisions in Kirby v. Calhoun, 8 S. & M. 462, and Carroll v. Renich, 7 S. & M. 798. Collier’s wife then had an interest in the slaves, which, by the married woman’s law, is a separate interest. Her husband acquires no right to it, and consequently it does not fall within that provision of the statute, which declares a legacy or bequest to a witness to be void. But on the general principle, which excludes a husband from testifying in a matter in which his wife has an interest, Collier was an incompetent witness as to the personalty. Moore v McKie, 5 S. & M. 243.

The question then arises, whether he was competent, as to the real estate; and this brings up the question, whether his wife took any interest under the sixth clause of the will.

In the fourth clause the testator says, “I wish the property I bequeath and bestow on Sarah A. Truly to be given and secured to herself and her bodily heirs, should she marry; and at her death,'should she have no issue, it is to go to her brothers and sisters.” In the sixth, he says, “and the balance of,my property to be divided between Sarah A. Truly and Mrs. Martha Truly.” In this balance his land was included. The general words in the fourth section are to be transferred to the sixth, as they are broad enough to apply to every disposition contained in the will, in favor of Sarah A. Truly. There is, then, a valid executory devise to Mrs. Collier. We are unable to perceive any difference in the principle, applicable to the testimony of Collier, whether his wife’s interest relate to real or personal estate. Her interest in each instance is, under our law, a separate one, secured to her own exclusive use. Yet the general policy which excludes husband and wife from testifying in matters involving the interest of either, makes him incompetent as to the realty, as well as the personalty.

The English cases hold that the statute 25 Geo. 2, does not apply where the witness takes no direct interest under the will, but only a consequential interest. 1 Jarm. 64; Hatfield v. Thorp, 5 Barn. & Ald. 589. The cases in this country hold differently, and avoid the devise or bequest, and make the witness competent. Cooder v. Woods, 1 Johns. Cas. 163; 2 Ib. 314; Winslow v. Kimball, 25 Maine R. 495. We think, however, it is better to hold, that the case does not fall within ouivstatute, avoiding bequests to witnesses, because the interest of the wife here is separate, and in this respect there is not “ that unity of person,” on which these cases last cited, in part at least, rest their claims for support. It follows, that Collier was incompetent as to the real, as well as the personal estate, and as there are not enough witnesses to establish the will as a devise of land, without him,'the will to that extent cannot stand.

In regard to the charges asked of the court, what has already been said will cover nearly all of them. It was erroneous, however, in the court below to have refused the charge — “that it is necessary to the due and proper execution of a will, that the witnesses should attest it in the presence of the testator.” See 1 Jarm. 74; Niel v. Niel, 1 Leigh, R. 6; Hutch. Code, 649, sec. 14.

The order of the probate court dismissing the petition of the appellants is therefore reversed, and the cause remanded for farther proceedings, in conformity with this opinion.

Decree reversed.

Mr. Chief Justice Sharkey expressed himself as not entirely satisfied with the foregoing opinion, so far as Collier was held to be incompetent to testify as to the realty.  