witness would have been entitled to any share of the testator's estate, in case the will, testament or codicil was not established, then so much of such share shall be saved to such witness as shall not exceed the value of the said devise or bequest made to him or her as aforesaid." Hurd's Rev. St. 1908, p. 2193.

It appears from what has been said that an executor is disqualified as a witness to a will on the ground of interest. The interest which he has, however, like that of a devisee or legatee, grows out of and by virtue of the execution of the will. In the case at bar the attesting witnesses were competent to attest the execution of the will in question at the time they signed the will as attesting witnesses, except by reason of the fact that they were named as executors. By the act of attesting the will the interest which made them incompetent by reason of their being named in the will as executors made them incompetent as witnesses to its execution. Such would be the case with a devisee or legatee who attests a will. The section of the statute above referred to was passed solely with a view to prevent the destruction of a will which would otherwise be a valid will except that the will, as executed, contained some provision which made its establishment according to the forms of law necessary by the calling of witnesses who took some interest under the will. If the incompetency of the witnesses existed outside of the fact that the will gave them a beneficial interest in the testator's estate, section 8 of the wills act does not remove the incompetency of the witnesses to the will. If, however, the incompetency of the witness arises by the act of attesting a will which gives the witness some interest in the testator's estate, the statute does apply, and under that section of the statute, while the witness cannot take under the will, nevertheless he may be called and the will established by his evidence.

The statute uses the words "devise, legacy or interest." The word "interest," therefore, must be given some force and effect, and, as applied to a case like this, it clearly designates the interest created in the attesting witness by his being named as executor in the will; that is, the interest which the witness receives as executor. The courts, in construing a statute, should give force and effect to all the language of the statute. Decker v. Hughes, 68 Ill. 33. A case may fall within the letter of a statute and not within its spirit, and it may fall within the spirit and not within the letter of a statute. No valid reason can be suggested why a devisee or legatee who signs as a witness to a will, and who may take an interest in the estate of great value to him under the will, should be compelled to appear and give evidence on the application for the probate of the will and thereby lose his legacy or devise, while an executor who only received a few dollars by way of commissions, cannot be required to give evidence in support of a will because of his interest. In construing said section 8, therefore, the word "interest" cannot be disregarded, and we are

of the opinion it was inserted in said section of the statute with a view to cover a right created by a will other than that which might properly be designated as a devise or legacy, and may be fairly held to cover such a contingent and uncertain interest as that which would accrue to an executor by virtue of his appointment.

We are of the opinion, therefore, that an executor named in a will who has signed the will as an attesting witness clearly falls within the spirit of said section 8 of the statute, and that such executor may be required to appear and give evidence in support of the execution of the will. The establishment of a will by the testimony of an executor will, however, have the effect, under the last clause of said section, to bar him from acting as executor of the will or from participating in the administration of the estate of the testator as administrator with will annexed or otherwise.

The circuit court did not err in holding that W. H. Armstrong and W. J. Sprague were competent witnesses by whom to establish the execution of the will of Jeremiah Smith, deceased. The judgment of the circuit court will be affirmed.

Judgment affirmed.""

57 In Noble v. Burnett, 10 Rich. Law (S. C.) 505 (1857), it was held that an executor witness loses commissions; but whether he loses the office of executor as well was not decided. In Fearn v. Postlethwaite, 240 Ill. 626, at page 630, 88 N. E. 1057, at page 1058 (1909), the court stated that in Jones v. Grieser, supra, the court "held that the executor could be required to appear and give evidence in support of the execution of the will, but that the establishment of the will by the evidence of the executor would debar him from acting as executor or in any way participating in the adminIstration of the estate."

That an executor is an incompetent witness, see Taylor v. Taylor, 1 Rich. Law (S. C.) 531 (1845); Workman v. Dominick, 3 Strob. (S. C.) 589 (1849); Morton v. Ingram, 33 N. C. 368 (1850); Gunter v. Gunter, 48 N. C. 441 (1856). Where the executor is not also a legatee or devisee, the weight of authorIty is, however, the other way. See cases cited in 77 Am. St. Rep. 466, note, and 15 Am. & Eng. Ann. Cas. 789, note, and also Hiatt v. McColley, 171 Ind. 91, 85 N. E. 772 (1908); Wisehart v. Applegate, 172 Ind. 313, 88 N. E. 501 (1909); Geraghty v. Kilroy, 103 Minn. 286, 114 N. W. 838 (1908).

In In re Kessler's Estate, 221 Pa. 314, 70 Atl. 770, 128 Am. St. Rep. 741 1908), a witness who was one of the executors under the will, who was a trustee and an officer in a church to which part of the income and ultimately part of the corpus of the trust estate was to go, and who had various options and rights regarding the trust property, was held not to be a disinterested witness, though the fact that he was executor would not alone have disqual tfled him. On the effect of the witness' interest in the institution beneficiary, see 15 Am. & Eng. Ann. Cas. 794, note.

"If the question were new, we see no good reason why the executor is not a credible or competent witness to a will under which he takes no interest, but is named as executor. It is at the time altogether contingent and uncertain whether he will ever be called upon to perform the duty of executor. He may die before the testator. The testator may revoke the will, or make a new one and appoint another executor. But, if it be regarded as settled at the time that he is to be executor, the only interest he can be said to acquire is to perform a service, for which he is to receive a bare compensation, just in proportion to the service performed. This can hardly be regarded as a legal interest, by any rule that has ever been recognized in the law. If a fixed per cent. were given by law, irrespective of the ac

O'BRIEN v. SPALDING.

(Supreme Court of Georgia, 1897. 102 Ga. 490, 31 S. E. 100, 66 Am. St. Rep. 202.)

FISH, J. Complaint is made that, on the trial of the present case, Mr. King was introduced as a witness in behalf of the propounder of the paper offered for probate, and was allowed, over objection, to testify concerning its execution by Mrs. Flynn, as to her mental capacity to make a will, and as to what passed between them when he read over to her and explained the meaning of the instrument he had prepared for her to sign. It is contended by counsel for the plaintiffs in error that, as Mr. King sustained toward the testatrix the attitude of attorney and confidential adviser, he was an incompetent witness to testify concerning any facts or circumstances, knowledge of which he had gained while attending to his professional duties in the premises.

We do not, however, understand the law to be that the plaintiffs are at liberty to urge this objection. The purpose of the common-law rule declaring that communications between attorney and client are privileged is to protect the client, Greenough v. Gaskell, 1 Mylne & K. 98, 103. Strangers are not at liberty to invoke this rule in their behalf. Accordingly, it was early decided in England that: "In a suit by next of kin of a testator, challenging a residuary gift made by his will to the executors, on the ground that it was made on a secret trust for an illegal purpose, * * communications had between the testator and the solicitor employed by him to prepare the will, with reference to the will and the trusts thereof, were not privi

tual services performed, it would be quite a different case." Poland, C. J. in Richardson v. Richardson, 35 Vt. 238, 242 (1862).

Where an executor is a competent witness, his wife, of course, is competent. Stewart v. Harriman, 56 N. H. 25, 22 Am. Rep. 408 (1875); Piper v. Moulton, 72 Me. 155 (1881); Will of Lyon, 96 Wis. 339, 71 N. W. 362, 65 Am. St. Rep. 52 (1897). And where he is not competent it is held in some jurisdictions that she is not. Fearn v. Postlethwaite, 240 Ill. 626, 88 N. E. 1057 (1909). In that Illinois case the whole will was held void where she was a witness, whereas if he had been a witness the r rule of Jones v. Grieser, supra, would have applied. That unfortunate result was reached because the Illinois court refuses to follow Winslow v. Kimball, ante, p. 192. See Fisher v. Spence, 150 Ill. 253, 37 N. E. 314, 41 Am. St. Rep. 360 (1894).

That a witness who is a beneficiary under a secret trust may still take under the trust is held in O'Brien v. Condon [1905] 1 Irish R. 51. But see In re Fleetwood, 15 Ch. D. 594, contra. The reason why the beneficiary of the secret trust may take is because he does not take under the will, but under the decree of equity. O'Brien v. Condon, supra. The same reason makes the devisee who takes subject to a secret oral trust unable to take, even as trustee, if he is a necessary witness to the will, and that whether the trust is enforceable or unenforceable; for he alone takes under the will. Moran v. Moran, 104 Iowa, 216, 73 N. W. 617, 39 L. R. A. 204, 65 Am. St. Rep. 443 (1897). But that a trustee under a trust expressed in the will may be a competent witness, see Key v. Weathersbee, 43 S. C. 414, 21 S. E. 324, 49 Am. St. Rep. 846 (1895).

The statement of facts is omitted, and part only of the opinion is given.

leged." Russell v. Jackson, 8 Eng. L. & Eq. 89, 15 Jur. 1117, 9 Hare. 387.

The correctness of this position has received the unqualified recognition of the Supreme Court of the United States. Blackburn v. Crawford, 3 Wall. 176, 18 L. Ed. 186. Indeed, the doctrine laid down by the English courts appears to have become the firmly established law of this country. Graham v. O'Fallon, 4 Mo. 338; Layman's Will, 40 Minn. 371, 42 N. W. 286; McMaster v. Scriven, 85 Wis. 162, 55 N. W. 149, 39 Am. St. Rep. 828; Scott v. Harris, 113 Ill. 447; Doherty v. O'Callaghan, 157 Mass. 90, 31 N. E. 726, 17 L. R. A. 188, 34 Am. St. Rep. 258. In the case last cited, Lathrop, J., in pronouncing the opinion of the court, said: "Undoubtedly, while the testator lives, the attorney drawing his will would not be allowed, without the consent of the testator, to testify to communications made to him concerning it, or to the contents of the will itself; but after his death, and when the will is presented for probate, we see no reason why, as matter of public policy, the attorney should not be allowed to testify as to directions given to him by the testator, so that it may appear whether the instrument presented for probate is or is not the will of the alleged testator.'

Judgment affirmed."

SECTION 9.-INCORPORATION BY REFERENCE

HANNIS v. PACKER.

(High Court of Chancery, 1752. Ambl. 556.)

Mary Meredith, being entitled to a real and personal estate, duly made her will 29th January, 1727, and devised to her sisters all the rest and residue of her real and personal estate, after payment of her debts and legacies, and made them executrixes.

The testator some time afterwards made a codicil, and gave plaintiff a legacy in the words following: "This I desire may be performed by my loving sisters, to give £200 to my cousin Edward Hannis." But this codicil was not executed in the presence of any witnesses.

The question made was, Whether the £200 legacy, given by the codicil, was a charge upon the real estate.

Lord HARDWICKE, Chancellor. When real estate is duly devised to trustees, and is well charged, by a will duly executed, with debts and legacies, debts which are contracted after making the will, or legacies given by a codicil, though not duly executed, will be a charge upon the real estate; for the real estate was well charged by the will

59 That a testator who requests his attorney to attest the will waives the objection of privilege, see McMaster v. Scriven, cited in the principal case. On privilege of communications to attorney during the preparation of a will, see 66 Am. St. Rep. 229, note; 17 L. R. A. (N. S.) 108, note.

with the debts and legacies; and it is immaterial by what instrument they appear, provided such instrument has been proved as part of the will; and when that is done, it is sufficient to denote the trust, and that it is part of what was intended to be comprised."

CARLETON ex dem. GRIFFIN v. GRIFFIN.

(Court of King's Bench, 1758. 1 Burr. 549.)

See post, p. 339, for a report of the case.

NEWTON v. SEAMAN'S FRIEND SOCIETY.

(Supreme Judicial Court of Massachusetts, 1881. 130 Mass. 91.) GRAY, C. J. If a will, executed and witnessed as required by statute, incorporates in itself by reference any document or paper not so executed and witnessed, whether the paper referred to be in the form of a will or codicil, or of a deed or indenture, or of a mere list or memorandum, the paper so referred to, if it was in existence at the time of the execution of the will, and is identified by clear and satisfactory proof as the paper referred to therein, takes effect as part of the will, and should be admitted to probate as such. Allen v. Maddock, 11 Moore, P. C. 427; Singleton v. Tomlinson, 3 App. Cas. 404; Jackson v. Babcock, 12 Johns. (N. Y.) 389; Tonnele v. Hall, 4 N. Y. 140; Chambers v. McDaniel (N. C.) 226; Beall v. Cunningham, 3 B. Mon. (Ky.) 390, 39 Am. Dec. 469; Harvy v. Chouteau, 14 Mo. 587, 55 Am. Dec. 120.

In the present case, the testator by the third codicil expressly re vokes that part of the will which gives directions for the payment of iegacies, and orders and directs his executors to pay the legacies mentioned in his will and codicils as nearly as may be according to the directions written in a book by Melvin W. Pierce, signed by the testator and witnessed by Pierce. The book admitted to probate contains such directions, so written, signed and witnessed, specifying the property out of which each legacy is to be paid; and, with the exception of two memoranda in the margin, which were excluded from the probate, is agreed by the parties to have been in its present format the time of the making of the third codicil. There is no doubt, therefore, of the identity of the document referred to, nor of its ex

60 But where the testator charges his real estate with legacies or annuities which he shall thereafter give and charge, it is not charged with such subsequent legacies or annuities unless the will giving and charging them is executed as required for a will of real estate. That is because otherwise "that is only an attempt to reserve by a will duly executed a power to charge by a will not duly executed." Rose v. Cunynghame, 12 Ves. 29, 38 (1805). 61 The statement of facts is omitted, and part only of the opinion is given.

100