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i. e. competency; must be regarded as it stood at the time of the attestation. By Lord Mansfield's explanation of the force of the word credible, it became a dead letter, and, therefore, his Lordship reduced himself to the necessity of supporting his argument, by supposing the word 'credible,' to have slipped in through the inadvertency of the framers of the statute, which he denied to be the production of Lord Hale, any further than, perhaps, as being compiled from some of his loose notes unskilfully digested,

His Lordship adverted to the rule of testimony in the Ecclesiastical Courts, and at the common law, where a release payment or tender made the testimony of the witness good. Nice objections of a remote interest, which could not be paid or released, though they hold in other cases, were not enough to disqualify a witness in the case of a will. Thus, parishioners, he said, might prove a devise to the popr of the parish for ever. Interest was no positive disability; it only afforded a presumption of bias, and on that ground rendered a witness incompetent; but still, it was only presumption, and presumptions only stood till the contrary was made apparent; if the bias were removed, the presumption ceased. That nothing could be more reasonable than to allow this objection of interest to be purged by matter subsequent to the attestation, and previous to the trial

Lord Camden, on the other hand, in the case of Hindon v. Kersey, argued, that the word “credible' imported a necessary and substantial qualification of a witness at the time of his attestation. And that if the witness was incompetent at that time, nothing er post facto could restore the validity of his attestation; neither could such devisee, or person taking a benefit under the will, be received as a witness for other devisees under the same will: the objection was irremovable, and the whole instrument, as far as it concerned real property, was void. He was of opinion, that the novelty introduced by the statute was the attestation, the method of proving which was left standing apon the old common law principles; as that one witness might prove what all the three had attested; and, though that witness must be a subscriber, yet that was owing to the general common law rule, that the best evidence must be produced. He considered, therefore, that the statute had principally in view the quality of the witnesses at the time of the attestation (6). That a will was the only instrument which required to be attested by subscribing witnesses at the time of execution; while leases, marriage agreements, decla

(6) In Brograve u. Winder, 2 Vez. jun. 636, an objection was taken to the competence of one of the witnesses to the will, as being interested at the time of his examination ; but as he had no interest at the time of the execution of the will and death of the testator, the Lord Chancellor, without argument, held him to be a good witness.

rations, and assignments of trusts, were only required to be in writing and signed. Those were all transactions of health, and protected by valuable considerations, and antecedent treaties. The power of a court of equity was thought sufficient to meet every fraud that could be practised in those cases; but a will was often executed suddenly in a last sickness, and sometimes in the article of death; and the great question to be asked in such case was this, was the testator in his senses when he made the will ?? and consequently the time of the execution was the critical minute which required guard and protection. An act so solemn, and often calling for a laborious recollection and investigation, executed at such a time, was pregnant with suspicion. What then, his Lordship said, was the employment of the witnesses? It was to inspect and judge of the testator's sanity before they attested, and if he was not capable they ought to refuse to attest. In other cases, the witnesses were passive; here they were active, and in truth the principal parties to the transaction. The TESTATOR WAS INTRUSTED TO THEIR CARE. The design of the statute was to prevent wills from being made, which ought not to have been made, and always operates silently by intestacy. It is true, continued the Chief Justice, the design of the statute was to prevent fraud; and though no suspicion of fraud appeared in the case before him, yet

. Vid. Doc. on dem. Walker v. Stephenson, 3 Esp. Ni. P. Ca. 284.

the statute had prescribed a certain method, which every one ought to pursue to prevent fraud'. As to the minuteness of the interest, as there was no positive law which was able to define the quantity of interest which should have no infļuence upon men's minds, it was better to leave the rule inflexible than to permit it to be bent by the discretion of the judge.

The reader will perceive, that both the cases of Wyndham v. Chetwynd, and Hindon 0: Kersey, came before the respective courts, after the statųte 25 Geo. 2. viz. the former in Michaelmas term 31 G. 2., the latter in Easter term 5 Geo. 3.; but the wills in both the cases were made before the lastmentioned statute was to have its operation of making void the beneficial interest given by the will to the person becoming a subscribing witness thereto, and therefore those cases could only come under the third section of that statute (if at all) which provided for the case of wills made before the 24th of June, 1752, and this clause makes mention only of a legacy or bequest, and extends only in words to the immediate object of such legacy or bequest.

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Neither the case, therefore, of Wyndham v. Chetwynd, (being that of a creditor of the testator becoming a subscribing witness to his will, which charged his debts upon his real estate;) nor that of Hindon v.

! Vid. Lea v. Libb, Carth. 37. the words of the court,


Kersey, (in which there was a devise of the testator's lands to trustees to dispose of the rents to the poor of a township, and the subscribing witnesses were seised of property in the township assessed to the poor rate,) were within the third section; and, consequently, they were not either of them within the statute. The circumstances of which cases would, however, were they now to happen, clearly bring them respectively within the first and second sections of the above-mentioned statute of George the Second. This great question is, therefore, now at rest to all practical purposes, and remains' only a subject of curiosity on which, as such, a great incidental importance is reflected, by the exercise they have given to two of the finest intellects which have adorned the bench of justice, in the maintenance of a most solemn and diametrical opposition of argument.

We cannot but observe, however, that, although Lord Mansfield was supported by all his brothers, and Lord Camden was overruled by those who sat with him, the legislature showed their sense of the subject to agree with the policy and principles of Lord Camden's reasoning, by extinguishing the interest of the subscribing witness, whatever it might be at the moment of his attestation. By this provision of the legislature by their second act, they seem to have declared their intention by the first; and still, in their alteration of the law, regarding the

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