
    [Pittsburgh,
    September 18, 1827.]
    KERNS against SOXMAN and another.
    IN ERROR.
    A devisee, who attested the will as a witness, is a good witness to prove the will, if before the trial thereof on a feigned issue, such devisee and her husband transfer their interest, and receive a release to the husband of all actions, from the transferee.
    Feigned issue in the name of John Kerns as plaintiff, and M.Soxman and C. Soxman defendants, from the Register’s Court of Westmoreland county, transmitted to the Court of Common Pleas for trial, where a case was stated for the opinion of the Court of Common Pleas, to be considered in nature of a special verdict.
    It was admitted, that the writing produced, purporting to be the last will and testament of Christian Soxman, deceased, was in the handwriting of John Barnet, Esq., deceased, and that the name John Barnet, written as a subscribing witness to the same, was the proper handwriting of the said John Barnet, deceased; and that he subscribed the same as a witness, in due form of law. That Sophia Soxman, now Sophia Kiser, a devisee named in said writing, subscribed the same instrument of writing as a witness. That afterwards, and before the statement of this case, the said Sophia and John Kiser, her husband, executed and acknowledged a transfer of all their right under the said devise, to the aforesaid John Kerns, which transfer was duly recorded: and that the said John Kerns afterwards, and before the statement of this case, executed to said John Kiser, a release of all actions, &c. If, upon this statement of facts the court should be of opinion, that Sophia Soxman, now Sophia Kiser, is a witness legally competent to be examined, to prove the execution of the said writing as the will of the said Christian Soxman, deceased, in the said court on a trial of the said feigned issue, after the said transfer and release, and that she was a legal witness to the said execution, and subscribed the said instrument as a legal witness, then it is agreed that the said instrument of writing, is the last will and testament of the said Christian Soxman, deceased, and judgment is to be entered for the plaintiff. But if the court should be of opinion, that the said Sophia Soxman, is not a witness legally competent to be examined to prove the execution of the said will, by the said Christian Soxman, deceased, although she was a witness to the said execution, and subscribed the same as a witness; then, it is agreed that the said writing, is not the last will and testament of the said Christian Soxman, deceased, and that judgment be entered for the defendants.
    
      Judgment for the defendants by the court below.
    
      Barclay and Foster, for the plaintiff,
    cited the following cases: Vin. Ab. Title Evidence, P. 14. No. 53. Wyndham v. Chetwynd, 1 Burr. 423. Hilliard v. Jennings, 1 Lord Raym. 505. Dickson v. Bates, 2 Bay, 448. This case is precisely in point. Powellon Devises,p. 60, 70, 100. Austin v. Bradley, 2 Day’s Rep. 466. Williams v. Peters, 12 Serg. & Rawle, 177.
    For the defendants were cited.
    
      Phil. Ev. 375,376. Hilliard v. Jennings, l Raym. 507. S. C. Carthew, 515. Comyn’s Rep. 91. Wyndham v. Chetwynd, Burr. 424. Starkie on Evi. 1689. Anstey v. Downing, 2 Stra. 1235, (1253). Amory v. Fellowes, 5 Mass. 228. Sears v. Dillingham, 12 Mass. 360. Cornwell v. Isham, 1 Day, 35.
   The opinion of the court was delivered by

Gibson, C. J.

Decisions on the English statute reflect no light on our act of assembly. By the statute, wills are to be signed by the devisor, and attested and subscribed in his presence by three or four credible witnesses; without which they are to be utterly void. Hence, a question which was long agitated in the English courts, and finally settled by an act of parliament, whether the witnesses must be credible at the time of attesting. It was, however, not a question of competency, but of form; the doubt being not whether the witness were qualified to speak, but, whether he had been qualified to act a part in the ceremony about which he was called to speak, attesting by witnesses credible at the time, being thought by some as necessary to a will, as sealing and delivery are to a deed. It was argued, that if the word credible were to go for any thing, the design of the act, vrauld not be answered by the attestation of a person who, at the time spoken of, was in contemplation of law, destitute of all legal credibility whatever. But, it must be obvious from the general looseness of the phraseology, that the word found its way into the statute, without being intended to have a definite meaning or legal operation; and that if it were in fact designed to express a necessary attribute of any of the actors in the ceremony, it was too indefinite to render it capable of judicial cognisance. It was evidently thrown in along with the three or four” witnesses, by way of sage counsel and advice; and we feel surprise, in finding the knot deemed worthy of the legislative sword. But, however this may be, it is sufficient for the purpose, that no such question is presented by our act of assembly, which requires neither signing nor attestation, nor any other act as an integral part of the ceremony of execution, but provides only for the mode of proof, which is to be, by two or more credible witnesses, upon their solemn affirmation, or by other legal proof.” Here indeed, we find the legislature using the same word, but in a way which demonstrates that they did not contemplate the existence of credibility at the time of attesting; for those who are called to make the necessary proof, may not have attested, nor been witnesses at all at the time of executing the paper. As to every thing butthe number of the witnesses, the proof is tobe according to the common law; and absurd consequences would follow were it otherwise. An accidental observer having released, would be competent, although he would have been otherwise, if at the request of the testator he had subscribed his name: or, if an interest at the date of the transaction were sufficient to disqualify per sc, one who should release would be incompetent to prove the testator’s handwriting, although perhaps ignorant of his interest till the moment of renouncing it, and although it be impossible to understand how an interest of which the party is unconscious, can create a bias. Such a conclusion should be adopted only on compulsion from positive and unambiguous terms which, however, are not to be found in the act of assembly.

Judgment reversed, and judgment on the case stated rendered for the plaintiff in error.  