
    
      Wm. Workman, ex'tr. v. Aaron Dominick.
    
    One named as executor is an incompetent witness to attest the will; and he can-, not afterwards be made competent, by the renunciation of his executorship.
    “ Credible” means competent; and the competency of a witness to a will, must be referred to the time of his attestation.
    If a witness to a will be not credible at the time of its execution, by reason of a benefit he may talce under it, he cannot be made credible by a future release.
    The office of executor, With the commissions legally incident to it, is an office of profit; and the appointment gives to the nominee an interest in the will, which makes him not a credible Witness to attest it. Taylor v. Taylor.
    
    X Rich. 531.
    
      Before Frost, J. at Newberry, Fall Term, 1846.
    This was an appeal from the decision of the Ordinary, refusing probate of the will of Margaret Dominick. The will was dated 20th July, 1841, and attested by three subscribing witnesses, of whom John Hair, who was appointed executor, was one. John Hair had not intermeddled with the estate, and on the 8th March, 1844, when the will was offered for probate, renounced the executorship.
    The Ordinary refused probate of the will, because it was not attested by three “ credible” subscribing witnesses ; holding that the executor was an incompetent attesting witness under the Act. The judgment of the Ordinary on this, the only point in the case, was affirmed; and the jury, under the direction of the Circuit Judge, found a verdict for the apppel-lees.
    
      1 Rich. 531.
    3 Greenl. Ev. l PM¡‘ Ev 49i. ’
    l Jar. on Rob^ on Wills 114.
    The executor moved to reverse the verdict,
    Because his Honor erred in deciding that John Hair was an incompetent witness to attest the will, he being named as executor; although he renounced his executorship before the said will was propounded for probate.
    
      Fair, for the motion.
    
      Pope, contra.
    This case was assigned by the Judges to the Court of Errors.
   Frost, J.

delivered the opinion of the Court.

It is made known to this Court, by the admission of counsel, in the argument (a fact which did appear at the trial) that the will of Margaret Dominick does not contain any devise of land; she having died not seized of any real estate.

In the case of Taylor’s will, decided in this Court, John Williamson, who was nominated executor, was one of three subscribing witnesses. He had qualified and acted in execution of the will. When it was offered for probate, in solemn form, he was dead. The only question was whether, under the Act of 1824, Williamson was a “ credible witness f and it was held that he was not. The same construction was applied to “ credible witness” in the Act of 1824, prescribing the mode in which wills of personal property should be exe-cutec*j which had been given to those words in the statute of frauds and Act of 1789, respecting devises of land. It was the opinion of the whole Court that :t credible” means comPetent > and that the competency of the witness must be re’ferred to the time of attestation. This point is settled. It is affirmed by all the elementary writers.

For this construction, it must be assumed that, to be credible, is a quality which the Act requires in the witnesses who may legally attest a will. These witnesses are deputed, by law, to protect the testator from coercion, restraint, or imposition; and to authenticate and confirm his last will and testament, as his voluntary and rational act. It follows that if the witnesses do not possess, at the time of the execution of the will, the quality required, it cannot afterwards be supplied. If any of them be not then credible, by reason of a benefit he may take by the instrument, he cannot be made credible by a future release. The Roman law required wills to be executed in the presence of freemen and citizens. If, when, the will was executed, they did not have these qualifications, the defect could not be supplied by subsequent emancipation or grant of citizenship. I<f an insane person attest a will, a recovery of reason cannot remove his disability when he did the act. No more can a release remove the temptation to fraud which an interest in the will created, at the time when the witness subscribed it. To hold that the statutory incapacity of the witness may be removed by a future release of an interest, which disqualified him at the time of attestation, would render the Act more instrumental to the practice than the prevention of fraud and perjury. The very precautions designed to give security to gifts of property, by will, mighty be converted into the means of defeating the disposition of the testator. The will would be absolutely in the power of the witness. If he consents to release, the will is established; if he refuses, the will is annulled. It is in his power to set up the estate to auction between the legatees and next of kin, and sell it to the highest bidder. And thus being first bribed by an interest in the will to make it, he is open to another bribe to vacate it.

I Ld. Ray. 505. 2 Stra. 1253.

4 Bur. 250.

3 Russ. 436. 3Sim’40.

A rule of evidence so pregnant with fraud and perfidy, should be excluded by every possible construction. The rejection of it is well supported by the words and intention of the Act, and by adjudged cases. Hilliard v. Jennings, Anstey v. Dorney, and the great argument of Lord Camden in Hinson v. Kersey. The statute of Geo. 2d set at rest, in England, this much agitated question ; so that I have not found any case later than Hinson v. Kersey, in which it has been directly decided. But the opinion of Lord Camden has prevailed. 1 Jarmon on wills, 63. 2 Greenl. Ev. sec. 691. Bargraw v. Winder, 2 Ves. 636, and other cases cited.

In the case of Taylor’s will, it was also adjudged that the office of executor, with the commissions legally incident to it, is an office of profit; and the appointment gives to the nominee an interest in the will, which makes him not a credible witness to attest it. The diversity of opinion in the Court respected the statute of Geo. the second; whether it was of force; and if it was, whether it applied to wills of personal property under the Act of 1824. Three of the Judges who maintained that it was of force, held that it operated ■only on devises of land ; and not on wills of personal properly. This is now well settled in the English Courts by the cases of Emanuel v. Constable, and Foster v. Banbury. Three'of the Judges who held that the statute was not of force, concurred that Williamson was nota “ credible” witness.

This case cannot be distinguished from Taylor’s case. If Williamson was not a credible witness, neither can Hair be. Williamson was not called to prove the will. His competency, as a witness, to prove it, was not tried. He might be competent to attest, and not to prove, the execution of the will. For attestation, and proof of attestation, are very different things. That Williamson had acted as executor, and received commissions, would have given him an interest to maintain the will, which might have disqualified him, if offered, as a witness, to prove it. But that would not affect his competency to attest, any more than, if after attesting, he had been convicted of perjury. In either case the attestation might be proved by other witnesses. If he was not a good attesting witness, it is immaterial whether he acted on the will or not_ That circumstance could only affect his competency to prove its execution. If he was a good attesting witness, any future disqualification could not destroy that competency. So, whether he had assumed or renounced the execution of the will, that being an act subsequent to the attestation, was wholly immaterial to the decision, whether he was acre dible witness, at the time when he subscribed the will; which was the sole and direct point made in Taylor’s case.

i Rich. 474.

The motion is dismissed.

Richardson, J. — Johnston, Ch. — Dunkin, Ch. — Evans, J. — Wardlaw. J. — Caldwell, Ch. — and Dargan, Ch.— concurred.

O’Neall, J.

dissenting.- — -I do not propose to enter into any discussion of the principles involved in this case: but merely •to state, as clearly and concisely as I can, my own opinions.

I still think the statute of Geo. is not of force in this State. Conceding, however, this, (as I shall hereafter be bound to do,) and that it applied to a testament, under the Act of 1824, (which the Court holds it does not,) still neither, in its words nor intendment, does it apply to an executorship. It is hence necessary, in some other way to shew, that an executor attesting a will may be competent to prove it. There is no doubt, that an executor is competent generally to. prove a devise of land. Why? — Because his office does not generally touch the land, and he has therefore no sort of interest, Henderson v. Kenner. It is true, if the devise be to the executor to sell the land, or he be directed to sell it, he could not generally be a witness to prove the will. For he would have a direct interest.

The reason of the exclusion of a legatee, or executor, as a witness to a will, is on the ground of interest alone. But to make one an executor, in this State, there is something necessary beyond the mere appointment, in the will. He must assume the duties. This is ordinarily done by probate of the will, and qualification. Ifhe'refuses to qualify, and the refusal be entered of record and administration be granted, he is not, and he cannot be, executor. Williams on Executors, 153-155. The executor Hair has refused, his refusal has been recorded, and administration has been granted. How he can be regarded as not a credible witness, under the Act of 1824, I cannot perceive. He has now, and never has had, any interest 1 For to say, that a man can be made executor against his will, is an absurdity. Neither can it be said he has any interest until he clothes himself with the power and authority to execute the testament. There is no case within my knowledge in which it has ever been held that one named executor and refusing to qualify was an incompetent witness. In Taylor’s case the executor had qualified, and acted to his death: he was therefore an executor clothed with the legal estate of the testator’s “ goods, chattels and credits ;” he bad earned commissions, which he could only have as executor. So too if alive, he must have been a party to the proceedings proving the will, and in such a case he clearly could not have been a witness. The question of his competency, or credibility, ought to have been judged as if he were then in Court and offered as a witness. For proof of his signature carries the legal implication, that he would, if alive, prove every thing which it purports. In Durant v. Ashmore, and Filson v. Philson, decided at Columbia, December, 1848, the executor, in both cases, refused to qualify; in one he was attesting witness; in the other not. In the case of Durant v. Ashmore there were three attesting witnesses, beside the executor. In each case, it was held, that the executor was competent, and gave important evidence to the fact of execution. It seems to me, that these cases remove the difficulty. For, if the executor can be sworn, and he has no interest in the question propounded to him, as to attestation and execution, the Court, cannot refuse to hear his answer, — and then the question of credibility, as in all other cases, is for the jury.

2Rich. 84.

3McC. 71

But it is said, the credibility or competency of the witness must be judged as of the period of attestation. This 1 admit is true to prevent the avoiding of a will. For no subsequent disability of one of the witnesses shall prevent the will from being proved and allowed. But it can hardly be held justly and properly, that this principle, intended to sustain wills, should be used as a means of destroying them. The notion is, that an executor named in a will, who refuses to act, or qualify, has an interest to sustain it. Such a doctrine is very much like the doctrine laid down in Walton v. Shelly, that no party who has signed a paper, or deed, shall ever be permitted to give testimony to invalidate it. Both proceed upon the notion, that there is a legal interest, when in fact there is none. The rule of Walton v. Shelly was reversed by Jordaine v. Lashbrooke, and put upon the true question, “ has the party an interest ?” This was recognized and adopted by the Court of Appeals in this State, in Packhard v. Knight. Why should the artificial rule, in reference to a testament,- be maintained ? I confess it is to me without a reason in its fa-vour. What interest can an executor have, at the attestation? The will is ambulatory to the testator’s death. It is nothing until then. When the testator is dead, if the executor were then absolute, there would be reason to say, his interest would be carried by relation back to the period of attestation. But that is not the case. He may, or may not, be executor, just as he pleases. If he says, I will not be, he stands just as if he never had been named executor, and is, I think, a perfectly good witness for every purpose.

2 BAy482, EqJiep.274. 2 Bail. 24.

It will not be denied that our cases, from 1789, when our Act on the subject of wills was passed, have, until Taylor v. Taylor, more or less, been decided in conformity to the views which I have’ suggested. Grimke’s Law of Executors, 73 ; Dickson v. Bates, Snelgrove v. Snelgrove, Garland et al. v. Crow, Moon, guardian, v. Herndon, decided in Equity, at Edgefield, in 1816. That case, as has been shewn, decides nothing to the contrary. It is true, in the argument of the Judges, the doctrine now about to be established, as law, was again and again reiterated. But such dictums, even if they have foundation in the English cases, ought not to overthrow all which has been done for more than half a century in South Carolina. The mischief, however, which the rule will work, will soon be seen and felt in the community ¡ — wills will be set aside, without merit, on a mere apex juris, until the people willeorrect.it. Until then I am content to stand as in error, sustained as I am by such Judges as Grimke, Waties, Bay, Brevard, DeSaussure, Nott, Colcock and Johnson, who held and maintained that as law which is now held not to be.  