By the law of Rome no hæres scriptus or appointed heir could be admitted a witness to the testament by which he was so appointed, nor could the testimony of any one who was in subjection to such heir, or of his father, to whom he himself was in subjection, or 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; 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". 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 testa

In excuse

after leaving the army, neither the father, nor any one under the power of the father, could be a witness to the testament. 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 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 from them, or are in affinity with them, unless he has found time and possessed curiosity to make that great work of human policy a distinct and specific branch of his studies,

Of the rule of

common law

courts, where

ment (3), and formed the principal feature of distinction between that and a codicil (4), or a donatio causa mortis.

In the spiritual courts of this kingdom, to which the spiritual and the sole cognizance of the validity of wills belongs, where they relate to personal estate, no legatee, can a legatee or de- give his testimony in foro contradictorio, in support of the validity of the will, till he has released

the witness was

visee.

(3) 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 see D. 28. 5. 1.

(4) 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 distinc-, tion thus: In testamentis condendis testibus opus erat talibus quibuscum olim fuerat testamenti factio in comitiis calatis, quia jure vetustissimo lex erat populi suffragiis perlata, jure novo solemnis mancipiatio hæreditatis. Omnia ergo hic solemnia. At codicilli erant epistola. Quis epistolis testes adhibet? quis in iis solemnitatem requirit? valebat hujusmodi epistola, etiam non obsignata, dum de ejus fide constaret: quia enixa voluntatis preces ad omnem successionis speciem porrecta 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 causa. Nec aliud voluit Theodosius dum in omnibus codicillis testes requisivit. Vin. Com. lib. 2. tit. 25.

his legacy or received the value thereof, and in case of payment, the executor of the supposed will must release all title to any future 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'. 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, 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 devest himself of his interest, and while his interest continued, his testimony was useless.

J. T. made his will, by which he disposed of his real estate, and gave to one J. H. and his wife, 101. each for mourning, with an annuity of 201. to E. H. the wife of J. H. The will was attested as the statute directs, by three witnesses, whereof J. H. was one. 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 powers given by the statutes, the particulars of which were, that a will of lands should be in writing, signed and attested by three credible witnesses in the presence of the devisor: that these were checks to prevent men from being imposed upon: and certainly meant that the witnesses to a will, (who are required to be credible) should not be persons entitled to any benefit under that will. And that, therefore, J. H. was not a good witness'.

It seems also, that the question was started in this case, whether a benefit to a witness at the time of his attestation, should annul his testimony, though, at, or after the testator's death, he should become disinterested by a release of his legacy, or the receipt of the value thereof, and that it was held, that the condition of the witness, at the time of his attestation, must be regarded; and that if interested then, he could not be a good witness. The doubts and objections agitated in this and in other cases", occasioned the statute 25 G. 2. c. 16". to be passed, whereby the contests concerning the force and obligation of the word 'credible' in respect to the attestation of persons benefited under the will, were finally composed.

The inquisitive student, however, will still recur

1 Strange 1254.

m Hilliard v. Jennings, Com. Rep. 91. and 7 Bac. Abr. edit.

Gwyllim, 329. Price v. Lloyd,

1 Vez. 503. 2 Vez. 374.

+ See Appendix.

tion in senti

ment between the and Camden,

He on the import and exigency of

that

the word cre

dible' in the sta

to the perusal of Lord Mansfield's and Lord Cam- of the opposi den's arguments on the opposite sides of the question, concerning the import and exigency of words 'credible witnesses,' used by the statute. will find Lord Mansfield strenuously of opinion, though a witness might be entitled to a benefit under tute. a will at the time of the attestation, yet if he became disinterested before his examination, his testimony was restored, and the will was supported by his attestation. In his Lordship's judgment, the word 'credible' could have no meaning beyond competent,' without leading to great absurdities; and in this general exposition of the word, Lord Camden coincided, but their difference was this: Lord Mansfield would understand competency' to imply nothing more than what was tacitly contained in the word witness by itself, (no man being a witness unless he is competent to give his testimony); so that it appeared to his Lordship (5), that the competency was to be seen and adjudged of at the time, and with reference to the time of examination in court. Whereas according to Lord Camden the credibility,

• Wyndham v. Chetwynd, i Burr. 414.

› Hindon v. Kersey, 4 Burn. Eccl. L. 97.

(5) In the subsequent case of Hindon v. Kersey, it is stated, that Lord Mansfield, previous to his delivering his opinion in Wyndham v. Chetwynd, declared that it was his own, and that he was personally answerable for all its errors; the judgment of the court being general, that they held the will duly executed according to the statute.