passed over by the pen a second time, which might happen to any person from a failure of ink. In the same case, after the witness had proved that the will was not genuine, he was shown a paper admitted to have been written by a *person suspected of forging the will, and was then asked, whether in his opinion that paper and the will had been written by the same person. The question was objected to, but admitted by the court; yet this was evidently a mere comparison of hand-writing, and a sort of comparison the least of all to be trusted, as it was an attempt to trace a resemblance between two papers, which the writer would endeavour to make as unlike as possible. This subject was much discussed in the case of the King v. Cator (1), tried before Mr. Baron Hotham, from which case this distinction may properly be made, namely, that persons of skill may be called to ascertain whether hand-writing is genuine, or whether it was written at interrupted strokes, like the writing of a person attempting to imitate the hand of another; but that they cannot be asked, whether the same hand, which wrote another paper, wrote also the feigned paper. * 374 SECT. II. Of the Proof of Wills. By the statute of frauds (2), " all devises of lands or tenements devisable by that statute, or by the statute of wills (3)*, or by force of any particular custom, are re (1) 4 Esp. N. P. C. 117. 145. O St, 29 C. 2. c. 3. s. 5. (3) St. 32 H. 8. c. 1., explained by St. 34 H. 8 c. 5. The statutes of the 32d and 34th of Henry VIII. gave the power of devising to such persons only as held by socage, and had an estate of inherit. ance in fee-simple. But copyholds, not being held by socage tenure, cannot be devised under these statutes, nor are they made devisable by any clause in the statute of frauds; and they are considered to be in their na *quired to be in writing, and signed by the party so devising the same, or by some other person in his presence, and by his express direction, and to be attested and subscribed in the presence of the said devisor by three or four credible witnesses, or else they shall be utterly void, and of no effect.". This clause describes the solemnities which ought to attend the execution, and particularly adverts to the character of the witnesses and the situation of the devisor at the moment when the act of attestation is performed. "That the statute had a main view to the quality of the witnesses," said Lord Camden in the case of Hindson v. Kersey, “will appear from this consideration, namely, that a will is the only instrument in it required to be attested by subscribing witnesses at the time of execution; while leases, marriage agreements, declarations, and assignments of trusts, were only required to be in writing and signed. These arc transactions of health, and protected by valuable considerations, and antecedent treaties; but a will is often executed suddenly in a last sickness, and sometimes in the article of death; and the great question to be asked in such cases is, whether the testator was in his senses when he made the will? and consequently the time of the execution is the critical moment which requires guard and protection. What is the employment of the witnesses? It is to inspect and judge of the testator's sanity before they attest, and, if he is not capable, they ought to refuse ture not properly the subject of a devise, for they do not pass by a will merely as a will, but by will and surrender taken together. The practice is to surrender to the use of the owner's last will, and on this surrender the will operates as a declaration of the use, and not as a devis of the land itself. A devise therefore of copyhold lands, or of customary lands which pass by surrender and admittance, does not require any attestation; nor will it require a signature, unless a signature is made necessary by the terms of the surrender to the use of the will. Wagstaff v. Wagstaff, 2 P. Wms. 258. Tuffnell v. Page, 2 Atk. 37. Carey v. Askew, 2 Bro. Ch. Rep. 58. Doe dem. Cook v. Danvers, 7 East 299. 322. 66 to attest (a). In other cases, the witnesses are passive, here they are active, and in truth the principal parties to the transaction. The testator is intrusted to their care (1) *." According to this *reasoning, the credibility or competency of the witnesses (for the term "credible" is to be construed in this passage as synonimous with competent,") must be considered with reference to the time of attestation (b); so that, if one of three attesting witnesses would have been incompetent to give evidence at the time of his subscribing, (as from want of reason, or from conviction of some infamous offence (1),) the will is not duly executed within the statute of frauds. Upon this principle it was determined, soon after the passing of the statute, that a devisee could not attest a will under which he took an interest (2) (c). But considerable doubts were af (1) Hindson v. Kersey, 4 Burn. Eccl. L. 88. (1) Pendock v. Mackinder, Willes' Rep. 665. (2) Hilliard v. Jennings, 1 Ld. Raym. 505. Com. Rep. 91. S. C. There has been a difference of opinion respecting the meaning of the term "credible,” in the fifth section of the statute of frauds. Lord Mansfield thought it inaccurate, and that it had slipped into the statute as a word of course; and that the witnesses need not be competent, as that word is understood in law, at the time of the execution. "If all the witnesses," said Lord Mansfield, "swear that the testator did not execute, if they had at the time the worst characters, and had committed the most infamous actions, yet their attestation answers the necessary form, because the testator meant to comply with the law, and might not know them to be bad men. Objections to the sufficiency of the subscribing witnesses," he added, “should be left to be judged of, as cases arise, by general principles, by analogy to the law of witnesses in other instances, and by arguments drawn from the nature and fitness of the thing with regard to justice, convenience, and the intent of the statute." Wyndham v. Chetwynd, 1 Burr. 418, 419. (a) The law, says the Sup. Court of Massachusetts, places the witnesses around the testator to try, judge and determine whether he is compos to execute the will. Poorle & others v. Richardson, 3 Mass. Rep. 330. acc. Heywood v. Hazard, 1 Bay 335. (b) Vide Amory v. Fellows, 5 Mass. Rep. 219. (c) Vide Starr v. Starr, 2 Root 303. Dickson v. Bates, 2Bay + * 376 *377 terwards entertained, whether the competency of such an (3) See on this subject Anstey v. Dowsing, 2 Stra. 1253. Wyndham v. Chetwynd, 1 Burr. 414. Hind- (a) Vide Shaffer's lessee v. Corbett, 3 Harris and M'Henry 513. Dickson v. Bates, 2 Bay 448. in which the question of competency was held to refer to the time of proving the will. "determined (a)." It had been determined, long before this act, that an executor, who took nothing under the will, and had no interest in the surplus, was a competent witness to prove the will in a cause concerning the estate (1) (b). The best proof of the contents of a will is the original will itself. An exemplification under the great seal is not evidence in an action of ejectment (2); nor is the probate of a will in the spiritual court any proof of a devise of real property (3), even where the original is lost (4), for that court has no power to grant a probate of such devises, or to authenticate them on its rolls. But, where the contents of a will are given in evidence, not to establish a devise, but merely for the purpose of proving a pedigree stated in the will, the rolls of the spiritual court, which has authority to enrol, have been thought admissible (5). And similar *evidence has been admitted, where a party to the suit has no right to the possession of the will, and could not produce the original. Thus, in an avowry for a rent-charge, where the avowant claimed under a will, which he could not (1) Anon. case, 1 Mod. 107. ; and see Bettison v. Sir R. Bromley, 12 East 250. where the cases are collected; and supra, p. 40. (2) Comberb. 46. (3) See ante, p. 299. (4) 1 Ld. Raym. 732. See St. Legar v. Adams, 1 Ld. Raym. 731 ; Skinner 174. (5) See ante, p. 299. (a) There is a similar statute in the state of New-York, sess. 36. c. 23. s. 12, 13. Under this act it has been held, that the devise is ab initio void, and consequently that no title can be derived from such devisee. Jackson d. Denniston & others v. Denniston, 4 Johns. Rep. 311. And if a husband be a subscribing witness, a devise or legacy to his wife is void, and so vice versa. Jackson d. Cooder & others v. Woods, 1 Johns. Cas. 163. Jackson d. Beach & others v. Durland, 2 Johns. Cas. 314. The judge of the the will. M'Lean & The inhabitants of an (b) Vide Hawley v. Brown, 1 Root 494. court of probate is a competent witness to wife v. Barnard, 1 Root 462. 2 Root 332. incorporated society to whom property is devised for the support of a school are competent witnesses to attest the will. Cornwell vsham, 1 Day 35. |