
    GENERAL COURT,
    MAY TERM, 1797.
    Frederick Shaffer and Wife, and Thomas Constable and Wife’s Lessee against William Corbett.
    THIS was an ejectment for lot No. 14. in the city of Baltimore,
    
    A case stated was submitted to the court for their opinion, by which,
    It is admitted that yacob F. Brown, late of Baltimore county, deceased, was seised in fee of the premises mentioned in the declaration, and that he died so seised thereof, and that Mary Magdalen Constable, the wife of Thomas Constable, and E‘ zabeth Margaret Shaffer, wife of Frederick Shaffer, are heirs at law of yacob Brown.
    
    It is further admitted that yacob Brown, on the 15tb day of November, 1790, then being seised in fee-simple of the aforesaid premises, made his last will and testament, whereby, among others, he made the following devises, viz. “ I give and bequeath to Catharine Barbara Brozvn, my wife, my whole estate real and personal, during her natural life. In case my mother, Mary Magdalen Brown, shall live longer than my wife, it is my will that my mother shall hold and enjoy the whole of my estate, or so much as shall remain at the decease of my wife, during her natural life.” He then devises that after the death of his mother and wife, his estate is to be divided into five equal parts. One part he gives to the children of his sister, Elizabeth Margaret Shaffer, equally to be divided among them, and their heirs. Another part in like manner to the children of his sister Mary Magdalen Constable. Two parts of the said five parts to be divided into four equal parts, one of which he gives to the children of his wife’s sister, Christiana Scott, equally to be divided among them, and their heirs. Ano* share in like manner to the children of his wife’s sister, Susanna Lindenberger. Another to the children of his wife’s sister, Mary Alder. Another to the children of his wife’s sister, Margaret Kelshamer, and the remaining share of the five parts he gives to William Corbett, one of the children of his wife’s sister, Margaret Kelshamer.
    
    It is also admitted that the testator departed this life on or about the 1st of December, 1790, and that the mother and wife of the said Jacob Brown, mentioned in the will, both departed this life in the month of December, 1790.
    It is also admitted that James Davidson, one of the subscribing witnesses to the will of the said Brown, was long before, and at the time of subscribing his name as a witness thereto, and yet is, the husband of Margaret, the daughter of Christiana Scott, and who, by the said will, is described as one of the children of the said Christiana, and is one of the devisees of the real estate of the said Jacob Brown.
    
    And it is submitted to the court, whether the said James Davidson can be considered a credible witness for the purpose of proving the said will, and giving validity to the same, even should the said James Davidson, and Margaret, his wife, execute, acknowledge, deliver and record, in due form of law, a conveyance and release of all the interest and right which they have, or might claim under, and by virtue of the said will in the real estate therein devised, should the said will be established j and if it is the opinion of the court that the said James Dav'tason is a credible witness to prove the said will on executing such a conveyance and release, or without executing such a conveyance and release, then judgment of nonsuit to be entered in this cause. But if the opinion, of the court should be, that the said James Davidson is not a credible witness to prove the said will, even though he executed a release as aforesaid, then judgment to be entered For the plaintiffs.
    Winchester, for the plaintiffs.
    Martin, (Attorney-General,) Shaaff and Hollingsworth, for the defendant.
    Winchester, for the plaintiffs.
    The case of Helier v. Jennyns is stated most correctly by Lord Raymond. 1 Ld. Raym. 505. Com. Rep. 91. 1 Freem. 510. Carth. 514. Espinasse, 472, 473.
    The facts material to the question in that case were, T. J. being seised in fee of lands, devised them to W. H. in fee, and executed his will in the presence of three witnesses, one of whom was W. H. the devisee. It was objected that this devise was void, Helice not being a credible witness within the statute. Raymond's report is best against the opinion of 1 Bl. Rep. 101. See Pow. on Dev. 115
    That case having decided that persons any way interested, as well as persons rendered incompetent by crimes, were not within the description of credible witnesses, the next case confirmed the decision, and agitated the question whether the want of credibility could be purged by any matter ex post facto. 2 Stra. 1253. Ansty v. Dowsing.
    
    The next case was Price v. Lloyd,, for the establishment of a will, but no decision ever took place, for the •witness on the master’s special report was no creditor. 1 Vez. 503. 2 Vez. 374.
    Money legatees had been admitted on payment or release, but the rule had never prevailed so far as to admit a release or payment, to restore the witness where he was a devisee of real property. So far from it, that Helier v. Jennyns was always received for law, and the dccision in Ansty v. Dowsing first created the alarm which gave rise to the statute of 25 Geo. II.
    But cases occurring not comprehended within the jmr- . view of this statute, it became necessary further to discuss the meaning of the word “ credible and the next case in which it was brought before the court was Windham v. Chetwynd, 28 Geo. II. 1 Burr. 414. See Pow. on Dev. 124.
    The principles upon which Lord Mansfield’s opinion was founded, were not generally satisfactory, and the same diversity of sentiment, as to the true construction of the statute of frauds, continued, and the case again came before the court in Hindson v. Kersey. Powell, 131—134.
    The case of Hindson v. Kersey was the last in which this question occurred, and while the numbef of the judges is nearly equal on each side of the question, the majority of decisions is evidently with the opinion that such a will is not duly executed.
    The cases and arguments remain to be contested. Windham v. Chetwynd may be received as good authority, and its application to this case may well be denied. The decision proceeded on general and particular circumstances, differing from the case of Davidson. Davidson’s interest is only consequential, not direct. But it has existence as a benefit, is derived from the will, and is the effect of the testator’s bounty. The witnesses in Windham and Chetwynd., derived nothing from the testator’s bounty. They had a legal remedy against the personal estate, which was found sufficient, and the charge on the real estate was unnecessary. 1 Burr. 430.
    The witnesses must be competent at the time of the attestation. The disability arising from interest renders them incompetent; it is the same, while it continues, as a positive incapacity; for whether they labour under either of these impediments, they are incompetent.
    If the principle is true that they must be disinterested at the time of attestation, they are to all intents and purposes as absolutely incapacitated as a notary public is from taking the acknowledgment of a deed; and a future freedom from interest would no more restore them, than a subsequent investiture of such powers in a notary public would give validity to the deed. While incompetency exists, whatever may be the cause of it, the witness must be rejected. The incompetency resulting from interest may be removed so as to receive proof; but it will not give capacity to attest, if capacity was requisite. Here it must always be remembered that the inquiry is not upon the method of proof, but the method of attestation.
    Attestation was rendered necessary by the statute; proof remains as it did at the common law. Thus, though three must attest, one may prove as we see in common practice.
    The statute introduces a total new ceremony. Publication ; signing by the testator; by the witnesses within the view or presence of the testator. If considered on general principles of construction, it would be also understood that new statutes, and all statutes limiting a thing to be done in a particular form, require a precise observance. Now that what that statute requires must be at the time of attestation, is the plain meaning of the. words. It gives a description of the solemnities which are to attend its execution. If there had been any other description of witnesses, it must be admitted they must be such at the time, as for example, three Englishmen, three witnesses of forty-five years old, three justices; and how are these adjuncts distinguishable from the one in question ?
    But if the word credible be left out, and the word witness ex vi termini includes competence, it is necessary that the competence exists at the time of the execution ; so either way our construction is right. An interested witness cannot be the one contemplated. The statute requires not attestation only, but that the witness should protect the testator.
    The case on Worley’s will (Powell, 31.) gave rise to the statute of frauds, and the statute was made to protect dying men from fraud, from imposition, from undue influence. Their business is to inspect his sanity. They are not passive as in other cases, but active and principal parties.
    The meaning of the word credible must evidently mean competent witnesses ; that is, unattainted witnesses, disinterested witnesses, not three men, not three competent witnesses in the loose sense, not three Baynhams bribed by a legacy to join in the fraud, and bribed again by payment to fix it. This is supported by Helier v. Jennyns, and Ansty v. Dowsing.
    
    The reasoning of Lord Mansfield on the civil law is by no means satisfactory or conclusive. By the conditio testium, was meant the positive capacity, or which means the same thing as the competence of the witness. The attestation was insufficient, from the want of a competent witness. The competency depended on the rank or quality of the witnesses, as free or bond, interested or not. The form prescribed required witnesses. The witnesses were required to have their competency at the time of execution. The text of the civil law evidently means moré than the condition, because it refers to the case of an infamous individual. See the civil law. Tempore testamenti inspicitur cujus conditionis sit testis. Dig. 28. tit. 1. s. 22. Conditio testium tunc inspicere deb emus cum. signarent, non mortis tempore. Si igitur tunc cum signarent tales fuerit ut adhibere possent, nihil nocet si quid postea eis contzgerit. In note on conditionem ; Sint liben vel serví hac enim est conditio. Non tamen servus factus testificabitur nec infames quia tempore testijicationis conditio testis inspicitur. Cod. Lib. 6. tit. 23. s. 23. Conditio testis spectatur secundum tempus quo testamentum signatur.
    
      
      Justin, lib. 2. tit. 10. s. 11. Justinian, in decláring that the testimony of legataries and trustees should not be rejected, says, imo in quadam nostra constitutione et hoc specialiter eis concesshnus.
    
    
      Burr. 428. As to the will being void, quoad the particular devise to the witness, the report of Carthew must be erroneous. Four persons might divide the whole estate. In 1 Raym. 730. a legatee cannot be a witness to prove the will, because the legacy is devised to him. The ability is to the whole will. 3 Mod. 263.
    As to the meaning of the word credible, see Burr. 117. Powell, 119. Credible witnesses are those who are permitted by law to give testimony; not credible ones are those who are not permitted. When the expression is applied to the person of a witness, it bespeaks him to be of capacity to deserve credit. The capacity meant a legal competence; the want of it from interest, produces something beyond the common effect — an absolute incapacity, including in it the want as well of credibility as of competence, and of course it is not like that interest which operates to the rejection of testimony from the presumption of bias, and may be removed by release. 1 Burr. 422. as in Burr. 423. where a case is cited from Finer, in which it is said that where a person had a legacy given, and did release it, he was a good witness to prove the will.
    The statute of Geo. II. it is admitted, on all hands, does not reach this case.
    From.these cases I conclude, 1st. That the witness JD .vdson was interested at the time of the subscription of the will; 2d. That a will attested by a witness interest-ted at the time of subscribing, is void; 3d. That a release cannot overreach the disability, or relate back to give competency, or capacity, to the witness who is not competent at the time.
    
      
      Shaaff\ for the defendant.
    The case states that the lessors of the plaintiff are the heirs of Jacob Bown. That Jacob Brown, being seised in fee of the premises in question, made his last will, and devised the same away from the heir, to devisees in the will named, and among others to the children of Christiana Scott. That the will was attested by James Dtvidson and others. That James Davidson, at the time he attested the will, was married to one of the devisees in the will, to wit, Margaret Scott, one of the daughters of Christiana Scott, in the will mentioned.
    The question submitted to the court is, whether James Davidson is a credible witness to the will of Jacob Brown, even if the said James Davidson and his wife^ in due form of law, should convey and release all their respective interest, derived to the wife under the will ?
    I shall not contend that this case is in any manner affected by the statute of 25 Geo. II. c. 6. the devise in this instance not being direct to the witness, who is only consequentially interested by reason of the. devise to his wife; and it seems to be the admitted doctrine, that this statute does not extend to any but the case of a direct devise to the witness himself. Therefore, this case is only to be considered under the statute of frauds.
    The statute of frauds (29 Car. II. c. 3. s. 5.) enacts, M That devises and bequests of any lands or tenements, Etc. shall be in writing, and signed by the party so demising the same, Etc. and shall be attested and subscribed in the presence of the said devisor, by three or four credible witnesses ; or else they shall be void and of none effect.” This is the clause in the statute on which the present question depends, and no part of any act of parliament, in our statute book, has been the subject of so much difficulty and dispute as it has b^en; and in no one instance have courts so liberally extended the words of the law, as they have in this, for the purpose of carrying into effect the will of the testator.
    
      In every part of the clause the construction has been liberal. It has been decided that the testator need not subscribe his name; if he writes it in any part qf the will It is sufficient. 3 Lev. 1. 3 Mod. 219. Pow. on Dev. 61. It has heen determined, that sealing a will is sufficient, without signing. 2 Stra. 764. Although that seems doubted in other authorities. Pow. on Dev. 67.
    With respect to witnesses signing in the presence of the testator, it is well known to what lengths courts have gone to support the will, having determined that it is not necessary for the testator to see the witnesses sign; that it is not necessary to be even in the same room. It is sufficient if the testator is in such a situation that he might see the witnesses sign the will. (See the case of Russell and Lux v. Falls, June term, 1796.)
    The same latitude of construction has prevailed in every other part of this statute, both in courts of lay/ and equity.
    Courts df law have determined that an executory con* tract for the sale of goods,, if .to be performed withina year, where no earnest is given, is not within the 17th sect, of this law. 1 Stra. 506. 4 Burr. 2101. They have decided that a conditional promise which may, or which may not, eventually be performed within a year, is not within the 4th sect. 3 Burr. 1278. 1 Ld. Raym. 316, 317.
    Courts of equity have also acted on similar principles in the construction of this law, because it is the settled practice of those courts, to direct the specific perform-, anee of contracts for the sales of lands, which are in part executed; although there is no memorandum in writing evidencing the contract; which is altogether out of the letter of the act.
    These instances are produced as not particularly applicable to the case before us, but only to show what has been the general ideas of courts on this act of parlia? ment, and with what liberality they have uniformly exPounded it, so as to effectuate the intention of the party, This, indeed, is avowed by Lord Mansfield, in 1 Burr. 421. and is essentially necessary from the very loose, inartificial manner in which that law is expressed, a law of such extensive operation on society.
    Having taken a general view of the statute, I will now proceed to consider that part of it which makes the attestation of three or four credible, witnesses requisite to the validity of the devise. This is the case at bar.
    It must be obvious that the word “ credible” cannot relate to the individual character, or reputation of the witness, as it is universally admitted that a man of the meanest and most profligate character will be a sufficient attesting witness under the statute, if he does not labour under any legal incapacity at the time of attestation; that word must have been thrown in out of great caution, as is frequently the case; the word witness ex vi termini alone taking in the idea of competency ; the whole of which is very ably urged by Lord Mansfield, in the case of Windham and Chetwynd hereafter cited.
    The case being then deemed free from the difficulty of the word “ credible” being introduced into the clause ; the act of parliament will then only require the attestation of three witnesses, and we are only to inquire who, in point of law, they can be.
    The act in this part of it, as in every other, ought not to have a rigid’ construction, and if a man who labours under no positive incapacity attests the will, the law is gratified, but if the person is under such positive incapacity of being a witness in a court of justice, it would be otherwise. For example, a man stigmatized by receiving an infamous punishment, is under a total disability of being a witness, and no act of his own or any other individual can alter his situation in this respect. Such a person might properly be considered as not a credible witness under the statute of frauds.
    
      But a man who is incompetent by reason of interest is under no personal disability of being a witness in general, and the cause of his incompetence, his interest, may at any time be destroyed, by a release from himself or some other individual, and by this means the presumption of bias wholly done away, which is the only cause of his incompetency at law.
    The genuine construction of this statute seems to be that if the witness was interested at the time of attestation, yet he may be rendered a credible witness within the act, if his interest is released after the death of the testator. If this is a correct construction of the law, James Davidson is a credible witness to the will of Jacob Brown.
    
    However this may be doubted by some on the general reasoning as to the meaning of the law, yet jt is apprehended that, upon an examination of the authorities, there can be no longer any doubt on the subject.
    The first case in which the point occurred, now under consideration, was the case of Helier v. Jennyns, 1 Ld. Raym. 505. Com. Rep. 510. Carth. 514. In that case, as far as relates to the present point, the facts were these: Thomas Jennyns devised lands to William Helier, by a will to which William. Helier himself was one of the attesting witnesses. Helier had never released, but claimed the land under the will. Here William Helier, at the time the question was agitated in court, was clearly interested to support the will, and one reason given by the court why he was not a competent attesting witness to the will, was, that he could not be considered as competent to prove his own subscription. Ld. Raym. 507.
    
    This case, as can readily be seen, does not stand in the %vay of the one under consideration, because there was there no release of.Helier's interest, nor any act done to qualify him, as is done in the present instance to James Davidson* .
    
      Both before and after the determination of the case of Helier v. Jennyns, it was certainly the understanding of courts and of the bar, that a relase or payment would qualify a witness to' a will, who was disqualified at the time of attestation. The first which occurs to me, is the case of Pyke v. Crouch, 1 Raym. 730. It was there laid down by the court, that a legatee was not a witness to prove a will unless he had released, but after he had released Ijhe legacy, he was a competent witness.
    The case of Pyke v. Crouch was on a trial at bar, which, from the solemnity of the decision, ought to have great weight, and it cannot be objected that it does not appear to have been a will of land, because, had it been a will Of personal estate, the fact of its execution could tiot have come in question in a court of law; that matter being properly triable in the spiritual courts.
    1 P. Wms. 557. Sir Robert Raymond there states the law to be .the same as is laid down in Lord Raymond, 730. This argument of Raymond is not contradicted either by counsel or the court, and happcned; subsequent to the case of Helier v. Jennyns.
    
    
      12 Vin. Abr. 14. tit. Evidence. Pewis declares on a trial at nisi prius, that it was solemnly agreed by the judges, that if a witness released, he might prove a will.
    These authorities all prove that, in the judgment of lawyers, a release on payment Would qualify an attesting witness ; to which may be added the declaration of Lord Mansfield, in the case of Windham v. Chetwynd, in 1 Burr. 423. which will be cited more fully in future. There Lord Mansfeld expressly alleges that it had always been so considered by the bar until the determination of the Case of Ansty v. Dowsing.
    
    Under the general idea of the operation of the i'elease to qualify a witness to a will, was decided the case of Ansty v. Dowsing, 2 Stra. 1253. In that case James Thompson devised lands to Dowsing, and by the will charges his real and ..personal estate with payment of an-* nuities and legacies, and particularly with an annuity of 20/. per annum to Elizabeth, the wife of John Hailes, for life, and gave a legacy of 10/. a piece to John Hailes and his wife; John Hailes was an attesting witness to the will. Before the trial a tender was made to John Hailes of 20/. for the legacies to himself and his wife, which was refused. No tender or release was ever made of the annuity.
    In this case it can readily be seen that John Hailes was clearly ati incompetent witness under the determination of the case of Helier v. Jennyns, because it is not stated that there was a release of the legacy to him or his wife, but only a tender of the money, which, in point of law, was no extinguishment of the claim of the legatee, and there was not even a tender of the annuity, which was an equal claim on the land. It was, therefore, not necessary for the court to determine the operation of a release of a legacy as to the qualification of an attesting witness to a will, nor did the chief justice even 3ay what would be the effect of such a circumstance in “the determination of the question*
    The Chief Justice Lee, to be sure, in that case, did say that the time of credibility was at the attestation ; from hence it is inferred by those who object to the legal execution of wills in the present situation, that the court there were of opinion, that if the witness was interested at the time of attestation, nothing ex post facto could have the effect to qualify him. It is certain the operation of a release was not in question in that case, and whatever may be the strict unqualified meaning of the short laconic expressions of the chief justice, it is equally certain that he has not expressly determined the effect of a release in such cases* But taking the expression of the chief justice in their greatest latitude, they only declare his own opinion; and it appears by a subsequent authority that the judgment of the court in Ansty v. Dowsing was upon the particular circumstances of the case; and Mr. Justice Denison, who sat in it, was not óf opsnion that the objection of interest at the time of subscriJ bing might not be taken off. 1 Burr. 427, 428. Lord Mansfield’’s argument.
    In all probability the extent of the doctrine, as laid down in the general language of the chief justice, passed unnoticed, and it is not unlikely that it was some time after the determination took place, before the extent of the. doctrine was discovered $ as it was six years after the decision of the case before the statute of George was made, Ansty v. Dozesing being determined in 19 Geo. II. and the statute passed in 25 Geo. II.' which law was given rise to by the alarm the practitioners took at the principles supposed to be established by that case.
    The next case in which this question came before the court, was the case of Price v. Lloyd, 1 Vez. 503. 2 Vez. 374. The bill was for the establishment of a will. On the interrogatories it appeared that one of the witnesses was a creditor of the testator, and had not released. On an account stated it appeared, that he was not a creditor at the time of examination, and it not appearing’ that he was so at the time of attestation, the chancellor, Lord Hardtoicke, would not permit a minute inquiry into the business.
    Lord Hardtoicke said that the case of Ansty v. Dowsing was brought into the exchequer chamber, and the judges were divided. The case was compromised by the parties, and not determined. He likewise said, “ It was going a great way to say that if a legatee released, it, would not make him a good witness.”
    This case of Price v. Lloyd clearly shows Lord Hard•wicke’s opinion to be different from the general doctrine of Lord Chief Justice Lee, as laid down in the case of Ansty v. Dowsing, and had the point come directly before him, there is the strongest reason for supposing that his judgment would have been different from the principles supposed to be advanced in that case.
    
      After the passage of the statute of Geo. II. before mentioned, cases occurred which were supposed not to be affected by that statute, and the above principles were again considered in the case of Windham, v. Chetwynd, 1 Burr. 414.
    This case was on a special verdict by which, as far as is necessary for this purpose to be stated, it was found, that the testator charged his real and personal estate with the payment of debts and legacies, and died, leaving a personal estate more than sufficient for the payment of both; that the witnesses to the will were creditors of the testator, but that after his death, and before their examination, they were paid their respective claims.
    In this case, Lord Mansfield went largely into the effect and operation of a release to a witness to a will, considered all the cases on the subject, and particularly the case of Ansty v. Dowsing, and determines that although a witness was interested at the time of attestation, a release would make him a good subscribing witness to a will under the statute of frauds.
    It appears from the reporter that this was delivered as the opinion of the court, (see 1 Burr. 417.) notwithstanding what is said by Powell, in his Essay on Devises, page 128. and it is hardly possible to suppose that the puisne judges who sat in the case of Windham v. Chet~ zvynd, would have permitted the single opinion of the chief justice, on a point of so much litigation and importance, to go forward to the public as the opinion qf the court, if they did not concur with him.
    The same question came again to be agitated in the case of Hindson v. Kersey, vide 4 Burris Eccl. Law, 88. Pow. on Dev. 130. In that case it is stated that John Knott devised his land to trustees upon trust to apply the profits to the benefit of poor people of a certain description, in the lordship of Maulsmeaburn; that Henry Holmes, Robert Burra, and John Mitchell, were the attesting witnesses to the will; that Holmes and Burra were two of. the trustees under the will; that all the witnesses under the will held land in the lordship of Maulsmeaburn, in respect whereof they were chargeable and taxable, and actually charged with, and paid taxes towards the support of the poor, of the said parish. That before the trial Holmes and Burra,- two of the trustees, released their interest under the will to the other trustees, and that all the witnesses under the said will disposed of, and conveyed, the whole of their land in the lordship of Maulsmeaburn» In this case the witnesses to the will at the time of attestation were clearly interested to support the will, because, as they held lands in the particular lordship in respect whereof they were taxable for the support of the poor, the devise of John Knott, being for the benefit of the poor of that lordship, operated to their advantage by making the burden lighter; and, consequent!}1, it was wholly and alone for the court to consider whether the conveyances of their interest in the lordship were sufficient to malfe them competent when they were not so at the time of attestation. This, in fact, was the only point considered by the court, and the judgment of the court was, that the will was well executed, and that a witness, incompetent by reason of interest at the time of subscription, might be rendered competent by matter ex post facto, as by .release or payment.
    This case of Hindson v. Kersey, is fully reported in the 4th volume of Burns’s Bed. Law, and is a case in which the point now under consideration was alone determined, it being the only point in the cause. It was decided by Clive, Bathurst and Gould, although Pratt, Chief Justice thought differently; but it is presumed that the opinion of the chief justice, however ingenious and able it may have been, will not be sufficient to overbalance the judgment of the other judges in that case, together with the adjudication of the king’s bench in Windham, v. Chetwynd, and the opinion of gentlemen of the profession antecedent to the case of Ansty v. Dowsing.
    
    
      The different authorities which are cited by the plaintiff’s counsel have, in my consideration of this subject, been attended to, and my ideas on them suggested. I will, therefore, only take notice of a few of the principal arguments.
    It is alleged by the plaintiff’s counsel, that a majority of judges and decisions are against the will in cases of this nature. I think a moment’s reflection and attention to the authorities will show the reverse,
    
      Ansty and Dowsing is the only case in which the court has thrown out an opinion which favours the doctrine that credibility is necessarily attached to the time of attestation, and in that case was only the opinion of the chief justice, and not of the court, and Denison thought different, as appears by 1 Burr. 427, 428.
    In Helier and Jennyns there was no release. In the ©ase of Price and Lloyd, it is evident that Lord Hard•wicke thought that the release would qualify the witness®
    In Windham and Chetwynd, Lord Mansfield, and it would seem that the rest of the judges, held the release was sufficient.
    In Hindson and Kersey, it was expressly determined that the release would render the witness competent.
    To which cases may be added the opinions before cited, and the different dicta of judges and counsel, before the determination of the case of Ansty and Dowsing. Hence I think it may be fairly concluded, that the ' weight of decision is in favour of a will circumstanced like the present.
    It may not be improper here to mention a passage in Pow. on Dev. 133. in which he seems to hint that the opinion of the Lord Chief Justice Lee, as delivered by him in Ansty and Dowsing, was the opinion of the whole court as to the time of credibility, and that some of the' judges differed from Lord Mansfield, in Windham and 
      Chetwynd, upon the general question; it must be re» that the opinion of Lord Chief Justice Lee was not the opinion of the court, as appears by 1 Burr. 427, 428. and from what has been before said, there can be no doubt but that the judgment in Windham and Chetwynd was the judgment of the court.
    It is also alleged by the plaintiff’s counsel that the dictum of Powis, in Fin. Abr. before referred to, was the case of a personal legacy, seeming to infer that there was a difference as to the effect of a personal legacy and a devise of land; but, upon every principle of common sense, the consequence of a personal legacy, and a devise of land, must be the same ; a man may be as completely interested by having a personal legacy willed to him, as the devise of real estate ; and he may as completely release the one as the other; therefore, as to the present question, the effect must be the same, and the legal consequences have been adjudged to be the same, because, in the case of Hindson and Kersey, the devise was of land, and the court determined the conveyance and release of the interest of the witness, was sufficient to qualify him to be a competent witness.
    It is also alleged by the plaintiff’s counsel, that interest is a positive incapacity. In answer to this I need only produce the argument of Lord Mansfield, in the case of Windham v. Chetwynd, in which he clearly draws the line between a positive incapacity, and the incapacity arising from interest.
   Chase, J.

delivered the following opinion : The question submitted to the court, by the case stated in this suit is, whether James Davidson, one of the subscribing witnesses, who attested the will of Jacob Brown, and who, at the time of the attestation of the said will, was married to Margaret Scott, one of the devisees under the will, is a credible witness for the purpose of proving the wilí, upon his and his wife’s joining in a release of all ihfiir right and interest under the will ?

This case must be decided according to the statute of frauds and perjuries, and the principles of the common law, as to the mode of proof of the attestation.

The word credible, in this clause of the statute, cannot be taken according to its most common and usual signification and importj for a question concerning the credibility of a witness cannot arise until his competency is admitted. The question of competency is determinable by one tribunal, the court; ’ and the question of credibility by another tribunal, the jury, upon the issue devisavit vel non: and where a spirit of litigation prevailed, no will could be established without undergoing a discussion before a jury, whether the witnesses were credible or not; so that whether a will was executed agreeable to the statute, would be eventual, and depend on the opinion of the jury, as to the credibility of the witness, which would frustrate the provision of the statute, by putting it out of the power of the testator, let bis understanding or caution be ever so great, to comply with that part of the solemnity, and to avoid the question, whether the witnesses were credible or not, and upon this ground that meaning ought to be rejected.

If, according to the opinion of Lord Mansfield,, the word credible crept in from want of attention to its meaning, or from the inaccuracy of the penman, or from its being used in the statutes relating to convictions before justices in a summary way, or whether, according to the opinion of Lord Camden, it means competent: in either case it must be rejected as superfluous and nugatory ; for competency is included in tbe term witness, so-the clause must be considered as if it stood without the word credible.

All persons in general are capable of attesting a will as witnesses who are not infamous, insane, or so young, as to want discretion, 3 Bl. Com.

Every person who attests a will as a witness must be competent to attest the will at the time of attestation, and no subsequent act can restore him to competency who , was incompetent at the- time of his attestation so as to give validity to the will; and é converso, he who was competent as a witness at the time of attestation, cannot be rendered incompetent, so as to destroy his attestation to the will.

(' A person who is competent to attest a will, may be incompetent to prove it, from the circumstance of his deriving an interest under it.

A legatee or devisee is a competent witness to attest a will, and whether he is competent to prove it or not, will depend on the circumstance ol his releasing or refusing to relinquish his interest under the will.

A legatee or devisee has no interest in the legacy bequeathed, or property devised, at the time of his attestation. ' His interest is contingent, and a mere possibility. His interest is like that of an heir at law, who is allowed to be a competent witness in disputes relating to the land of his ancestor.

The interest of the legatee or devisee cannot attach 2ior exist until the death of the testator. The will may be cancelled or revoked by a subsequent will; so that it is nothing more than a possibility of interest.

The interest which disqualifies or incapacitates a witness is an actual subsisting one, and not a future, contingent, or possible interest; and no stronger instance can be adduced than that of the heir at law, which is exactly analogous to that of the devisee or legatee. Vide 1 Salk. 383. Buller’s N. P. 284.

In one case the possible interest of the heir apparent will attach or vest, if the ancestor dies without a will. In the other case the possible interest of the devisee or legatee will vest if the testator dies without making a new will, or cancelling the old.

The presumption of bias on the ground of interest is as strong in one case as in the other.

It is contended that a legatee or devisee is incompetent to attest the will on the ground of interest. A case has occurred to me, which, I think, proves the fallacy of this position. Suppose the legatee dies before the testator, and the legacy is a lapsed legacy. In such case the legatee never had any interest, and yet he is to be adjudged an incompetent witness to attest the will on account of his interest, and the will is to be held void. Further to elucidate the point, and to prove the legatee has no interest at the time of attesting the will, to disqualify him as a witness, suppose A. being seised of a tract of land called Blackacre, makes his will, which is executed according to the statute, and devises it to B. ; the will is known and its contents, a dispute arises in the lifetime of A between him and C., who holds an adjoining tract called Wkiteacre, respecting the bounds of Blackacre, and an ejectment is brought; B. the devisee, is produced as a witness to prove some of the bounds of Blackacre; an objection is made to him as being incompetent, being a devisee under the will of A.'of Blackacre; the will and devise is admitted or proved, could the court adjudge him to be an incompetent witness ? I think the court would say without hesitation, his interest was contingent, and a mere possibility, and that no stronger objection lay against him than against an heir at law, who is allowed to be a legal witness in a dispute, relative to the land of his ancestor.

I will endeavour to explain my position, that a legatee may be competent to attest, and incompetent, or competent to prove the will, according to his retaining or. releasing his interest derived under the will, when he is called upon to prove it.

When the Will is attested by three witnesses, and clothed with the other solemnities prescribed by the statute,, it then becomes necessary to prove the attestation by the witnesses whose names are subscribed, and also a compliance with the other requisites. The witnesses, if living, must be called on to prove their attestation; because it is the best evidence. If any one of the witnesses should, as legatee or devisee, derive an interest under the will, such witness would be rejected as incompetent to prove his attestation, on the ground of interest, unless such interest was released; and no inferior kind of testimony could be resorted to or admitted to prove his attestation, and, consequently, there would not be proof that the will was attested by three witnesses. Esp. N. P. 755, 756. Bull. N. P. 264. The will must be proved by all the witnesses.

A will to transfer real property under the statute, must appear to have the solemnities required by the statute, and proof must be adduced of such solemnities, and the best evidence must be given, and the best evidence is the proof of the witnesses themselves.

If in the interval between the attestation and the proof of the will, any of the witnesses should become infamous, be insane ©r die, proof of the attestation of such witness, by the other witnesses, would be received as legally admissible, because the best evidence. 2 Stra. 1109.

It is said by Chief Justice Lee, in Ansty and Dowsing, that'the allowing a devisee or legatee to be a witness to attest a will would be opening a door to fraud.

The admission of a legatee or devisee as a witness to attest the will, will open no door to fraud. The witnesses do not know the contents of the will, nor is it necessary they should; therefore, it is not to be presumed that the witness, if he is a legatee, knows any thing of it at the time of his attestation.

When fraud is practised, the persons who are capable of practising it generally clothe the transaction with all the necessary forms and solemnities. If the will is obtained by fraud, the heir at law can give evidence of it to defeat the will. Bull. N. P. 266. Fraud is exam in able in a court of law.

The Court

are of opinion that James Davidson is a credible witness for the purpose of proving the will, upon his and his wife’s joining in a release of all their right and interest under the will, and on the case stated, give judgment for the defendant.

The plaintiff appealed, and, at November term, if99, the court of appeals affirmed the judgment of the general court.  