Of the qualification of

the witnesses.

What offen

*PART IV.

IT seems now time to speak of the quality and capacity of the witnesses, who, by their attestation, are necessary to give effect to a will of real estate, under this statute. In Hudson's case, reported in Skinner,(a) it was proved that the witnesses had been dealt with; upon which it was urged by the counsel, that if the witnesses were not to be believed, then there would not be three witnesses to the will, and so no will within the statute; to which Chief Justice Pemberton answered, that if there were three witnesses to a will, whereof one was a thief, or person not credible, yet the words of the statute being satisfied, and he having collateral proof to fortify the will, he would direct a jury to find it a good will. By which it should seem, we ought to understand his Lordship to mean, that if there was nothing at the time of the attestation to impeach the competency of the witnesses, they must be regarded as credible witnesses at that time, within the proper interpretation of the word credible, as used by the statute. But if a witness be convicted of felony, and so rendered infamous, at the time of his subscribing the will, it seems not to have been doubted, but that the will was invalid, for defect of a sufficient attestation.

Crimes which stigmatize a man with infamy, when convicted ces disquali- thereof, such as treason, felony, conspiracy at the suit of the fy. crown, perjury, forgery, barratry, attaint of false verdict, and disqualify him for giving evidence upon a trial in a court of justice, repel him also from becoming a subscribing witness. *[416] to a will, to the effect of satisfying the statute *by his attestaThat it is the tion.(6) It seems, indeed, to have been formerly a notion, that infamy of the every offence for which a man had been caused, or even sen offence, and not of the tenced to be set in the pillory, on account of the infamy of the punishment, punishment, rendered him incapable of giving testimony ;(c) which disqualifies. but more modern cases have established the law in this particular on a more sensible foundation, by making the infamy of the crime only, and not the infamy of the punishment, the ground of the disqualification; and according to the present doctrine, persons who have suffered an infamous punishment, unless the

(a) 79. (b) Com. Dig. tit. Temoigne, A. 2. (c) Co. Litt. 6. b.

offence for which it was inflicted on them, was of the species of crimen falsi, or other crime of an infamous nature, are not disabled from giving their testimony in a court of justice, however much their credit with the jury may be affected by such a fact. Before the statute of the thirty-first of this King,(d) persons convicted of petit larceny, were judged not to be credible witnesses to attest a will under the statute of frauds. And in the case wherein this was held, the rule was also laid down in strong and clear terms, that it is the crime and not the punishment which makes a man infamous, and vitiates his testimony.(e)

If a man be sentenced to the pillory for a treasonable libel, or slanderous words on government, he is not disqualified for becoming a witness in court, and is therefore a credible witness to a will; but if he be convicted of barratry,, which is an infamous offence, though he be sentenced only to be fined, he is rendered incompetent as a witness in court, and unqualified, it is conceived, as a credible witness, to attest under the statute.(ƒ) Idiots and madmen, and children under *the age of common * [ 417 ] knowledge, who are incapable of discerning or estimating truth, are clearly in a state of legal incompetency to prove a fact, and therefore, can never be regarded as capable of attesting a will, so as to answer what the statute intends by such attestation. And generally, I apprehend, it may safely be concluded, that whatever incapacitates a man as a witness at common law, is an objection to the sufficiency of his attestation as a credible witness, within the meaning of the statute; for credible,' in the place in which it stands in this statute, cannot well be received incredible,' as it is used by any other sense than competent ;' the word in its popular sense the statute, being incapable of any constant test or standard, according to must be understood in which a testator could make his choice of witnesses with any the sense of confidence in the validity of their attestation. Upon the same competent, principle, if the competency, having been lost, has been restored before the attestation, the credit required by the statute has also been re-established, and the attestation will be good. Thus the King's pardon, after a conviction of perjury, or other

(a) By stat. 31 Geo. 3, c. 35, it is enacted, that no person shall be an incompetent witness, by reason of a conviction of petit larceny. (e) Pendock v. Mackinder, Willes, 665. 2 Wils. 182. And see Rex v. Ford, 2 Salk. 690. 5 Mod. 15. (f) Chater v. Hawkins, 3 Lev. 426. Rex v. Ford, 2 Salk. 690.

The word

Of the qua

witnesses in the civil law.

offence at common law, qualifies the party to attest a will, though, as it should seem, it would be otherwise in the case of a conviction of perjury, on the statute of 5 El. c. 9.(148) And such restoration to competency would come too late, as I humbly apprehend, between the time of attestation and examination in court.(149)

(148) If a man be convicted of perjury upon the statute, he cannot be restored to credit by the King's pardon; for by the statute it is part of the judgment, that the convict be infamous, and lose the credit of his testimony; nothing, therefore, but a reversal of the judg ment, or a statute pardon will, in that case, suffice to restore the competency. Rex. Crosby, 2 Salk. 689, and Rex v. Ford, ibid, 690. 3 Salk. 155.

(149) By the laws of the empire, those persons only were capable lification of of attesting a will, who were themselves legally capable of making a the attesting testament. No person under puberty, or insane, or mute, or deaf, or prodigal interdicted the use of his own property, or such as the law had judged reprobate or infamous, or had rendered intestable, could be admitted as witnesses to a will. I. 2. 10. 6. D. 28. 1. 20. Neither could women be witnesses to regular or perfect wills: the law admitting them in all matters, whether civil or criminal, when the nature of the case was such, that other evidence could not be attained, but not when there was a choice of testimony, as in making wills, and solemnising other public acts: their testimony was admitted in proof of a fact, but not to give validity to a solemn instrument. See this particularity of the civil law explained, and the whole of this title of the Institutes qui testes esse possunt,' well commented upon by Vinnius,

edit. Hein. 297.

1

The witnesses by the civil law must be credible, and idoneous, at the time of the will's being made, and according to the humanity of that system, as well as of our own, every one was presumed to be fit as a witness, unless the contrary was made to appear. D. 22. 5. 2. It is to be observed too, that all the witnesses ought to be fit, or idoneous, for the whole will was rendered null and void by the insufficiency of any one of the witnesses. C. 6. 23. 12. unless a codicillary clause were added, that if it were not valid as a will, it should be valid as a codicil. If a madman attested in a lucid interval, his attestation was good, and so was that of a prodigal, if, before attesting, he had returned ad bonos mores. The integrity and freedom of the witnesses was a great point in the imperial law; insomuch, that no -person could be a witness to a testament, who was under the power of the testator; and though any number of persons might be admitted witnesses out of the same family, to a will in which the family was

*By the law of Rome, no hæres scriptus, or appointed heir, could be admitted a witness to the testament by which he was so † [419] appointed; neither could the testimony of any one who was in subjection to such heir, nor of his father, to whom he himself was in subjection, nor of his brothers, if they were under the power of the same father, be admitted; but the testimony of legataries, and of those who were allied to them, or in subjection to them, was admissible,(g) which was a doctrine, not perfectly agreeable to the general rule of the civil law, that no one should be permitted to give testimony in his own cause ;(h) nor is the consistency of that rule saved by the reason given for the admission of such testimony, viz. that legataries were particular and not universal successors, and that a testament might be valid without them; whereas, the appointment of an heir, was of the essence and constitution of a perfect testament,(150) and formed the principal feature of distinction between that and a codicil,(151) or a donatio causa mortis.

(g) I. 2. 10. 10. 11. (h) Cod. 4. 20. 10.

not interested, yet, if a son of a family gave away his military estate, or peculium, after leaving the army, neither the father, nor any one under the power of the father, could be a witness to the testament. In apology for which rules of exclusion, the extent of the paternal authority among the Romans should be remembered; and, indeed, so adjusted to one another do the several parts of the system of the Roman jurisprudence appear to be, that, it seems, the student will have considered them with little advantage in a view to the illustration of such of our own laws as have been copied therefrom, or are in affinity there with, unless he have found time and possess curiosity to make that great work of human policy an entire and consecutive branch of his studies.

(150) The exactest definition of a Roman testament has been thought to be this—the appointment of an executor or testamentary heir, made according to the formalities prescribed by law. Domat. lib. 1, t. 1, sect. 1; and vide D. 28, 5, 1.

(151) There is no difference in our law, as to publication, between codicils and wills: but codicils are said by Justinian, nullam solemnitatem ordinationis desiderare: which Vinnius comments upon with disapprobation, as not being consonant to the Theodosian code; and complains of the jejuna quorundam distinctio inter solemnitatem ordinationis et probationis. Heineccius, however, maintains the distinction thus: In testamentis condendis testibus opus erat talibus quibuscum olim fuerat testa

Of the rule

*In the spiritual courts of this kingdom, to which the sole cogof the spirit- nisance of the validity of wills belongs, where they relate to per

ual and com

mon law courts, where the

witness was

sonal estate, no legatee, can give his testimony in foro contradictioro, in support of the validity of the will, till he has released his legacy or received the value thereof, and in case of payment, a legatee or the executor of the supposed will must release all title to any fudevisee. ture claim upon such legatee, who might otherwise be obliged to refund if the will be set aside; and the release is always made to the intent, that the legatee may have no shadow of interest at the time of making his deposition.(i) The same rule prevailed in our courts of common law with respect to the inadmissibility of the testimony of a devisee or person benefited under a will of real estate, to establish its validity: and it appears from the case of Anstey v. Dowsing,(k) that, if a legatee, who was a witness to a will, refused either to renounce or to receive a sum of money in lieu of his legacy, he could not be compelled by law to divest himself of his interest, and while his interest continued, his teştimony was useless.

* [421]

J. T. made his will, by which he disposed of his real estate, and gave to one J. H. and his wife, 107. each for mourning, with an annuity of 20l. to E. H. the wife of J. H. The will was attested as the statute directs, by three witnesses, whereof *J. H. was The legacies, and satisfaction for the annuity were tendered and refused. And the question upon the special verdict was, whether, or not, the will was well attested according to the statute of frauds. The judges of the King's Bench were unanimously of opinion, that a right to devise lands depended upon the

one.

(i) Vid. Harris, Inst. Just. lib. 2, tit. 10, s. 11.

(k) ibid.

menti factio in comitiis calatis, quia is actus jure vetustissimo lex erat populi suffragiis perlata, jure novo solemnis mancipatio hæreditatis. Omnia ergo hic solemnia. At codicili erant epistolæ. Quis epistolis testes adhibet? quis in iis solemnitatem requirit ? valebat hujusmodi epistola, etiam non obsignata, dum de ejus fide constaret : quia enixæ voluntatis preces ad omnem successionis speciem porrectæ videbantur. Testes ergo adhibebantur ab iis, qui nuncupative fidei committebant. Postea autem in scriptis codicillis intestatorum testium opus erat præsentia per L. 1. C. Theod. de test. et codicill. non solemnitatis causa, sed ut testantium successiones sine aliqua captione serventur. Ergo non solemnitatis causa adhibendi, sed probationis Nec aliud voluit Theodosius dum in omnibus codicillis testes requisi it. Vin. Com. lib. 2, tit. 25.

causa.