Taylor v. Taylor 1 Rich. 531, 30 S.C.L. 531

Curia, per

Frost, J.

The will of Henry Taylor was admitted to probate by the Ordinary of Beaufort district, on proof of the handwriting of John P. Williamson, (then deceased) one of the three subscribing witnesses. Williamson was appointed executor of the will, but took no legacy or devise.

The will disposed of both real and personal property; but the question in this case arising on an appeal from the court of Ordinary, affects only the disposition of the personal property. For devises of land being exclusively of Common Law jurisdiction, and wills of personal property peculiarly belonging to the jurisdiction of the Ecclesiastical Court, or court of Ordinary, the provisions of a will are, by the respective courts, considered exclusively in reference to file property which is the subject of its jurisdic*534tion | so that the grant or rejection of probate of a will of personal property, is not evidence in an issue between the heir and devisee — nor is a verdict on such an issue in the common law courts, evidence in the court of Ordinary. (a)

The case then presents the question, whether one appointed executor without any legacy or devise, is a competent attesting witness to a will of personal property, under the Act of 1824. (b)

The Statute of Frauds (c) provides that all devises of lands, “ shall be attested and subscribed by three or four credible witnesses.”

In precisely the same terms, the Act of 1824 requires that all wills of testaments of personal property shall “ be attested and subscribed by three or more credible witnesses.” '

The use of the same terms in describing the qualification of the attesting witnesses, requires that in this particular the two Acts should receive the same construction.

By the term ‘ credible,’ as applied to witnesses in the Statute of Frauds, is to be understood “ competent.” Neither the Act of 1824, nor the Statute, requires the devise or will to be proved, but attested, by three or four credible witnesses. This presents an obvious difference between attestation and the proof of that attestation. Accordingly in Hindson vs. Kersey (d) Lord Camden affirms that the great inquiry in this question is, how the will ought to be attested, and not how it ought to be proved. The pew thing introduced by the Statute, is the attestation. The method of proving this attestation, stands as it did at common law.” This is the received construction of the Statute of Frauds; and it is now well settled law, that credible means competent, and that the competency of the witness has reference to the time of attestation. The same construction must be applied to the Act of 1824.

The only objection to the competency of Williamson as *535an attesting witness, is made on the ground that, as executor, he had an interest to support the will. The rules of evidence on this point are the same in the Ecclesiastical as in the Common Law Courts. In neither, is an interested witness received, to testify in his own favor. All the cases from the Ecclesiastical courts shew, that a witness taking an interest or legacy under a will which he is called to support, must be restored to competency by a release or extinguishment. But certainly, in the Courts of Ordinary, in this State, the rules of evidence respecting the competency of witnesses, on the ground of interest, must conform to those of the Common Law courts. The provisions of the Act of 1839, (e) respecting the duties of the Ordinary, require, that in case of the probate of a will in common form, if the attesting witness cannot be produced to prove its execution, such secondary evidence as is admissable by the rules of the common law, shall be resorted to. An appeal to the Court of Common Pleas from the decision of the Ordinary, on probate of a will of personal property, in which the case shall be tried anew, with such additional testimony as the parties may procure, necessarily enforces a conformity in the rules of evidence. Besides, the construction of all Statutes! is exclusively the province of the common law courts ; and if the Ecclesiastical court should proceed otherwise than in conformity with the construction of those courts, a prohibition would lie. (f)

It is conceded, that an executor who takes no legacy, nor the residue, nor other interest under the will, is a competent witness in an issue between the heir and devisee ; because, as already explained, he can have no interest in the event of such an issue. It may also be conceded, that prior to the Statute of 1 Victoria, c. 26, (g) an executor, with the like exemption of interest, or who had released, and who was not a necessary party by having made probate of the will, was admitted in the Ecclesiastical courts, in support of a will of personal property. But his competency, in both courts, is supported on the ground^ that an executor in *536England takes a mere naked trust and burdensome office. (h)

N But in this State the executor is entitled to commissions, which create an interest in the appointment. It is not denied, if a legacy is given to an executor, for his care and trouble in executing the will, that such an interest would render him incompetent. Bat a distinction is taken between that case and this, because the executor’s commissions are given by law, and in payment for services rendered, according to the measure of those services. It cannot be disputed, that the office of an executor is an appointment yielding emolument; and, as such, a subject of pecuniary interest and of generally acknowledged value: All offices of profit are encumbered with the performance of duties, to which the compensation is incident. In a contested election for such an office, neither of the candidates would be received as a witness ; for it could not be doubted that he had an interest in the question. The residue not disposed oí by the will, in England, vests in the executor by the act of the law, yet such an interest makes him an incompetent witness in support of the will. A Statute of North Carolina declares, that a devise shall not be valid, if any one of the witnesses be interested in the devise. In Allison’s Executors vs. Allison, (i) it was held, that an attestation by the devisee in trust, with a provision for compensation in executing the trust, avoided the will within the Statute.

It is argued, that the interest is too contingent and remote to affect the competency of the executor. But commissions are not so contingent as the residue ; that the executor may die before the testator, or the will be revoked, are risks common to both. The commissions are certain if neither of those risks happen; but the residue may fail from deficiency of assets.

If all the contingencies which may defeat any benefit from the residue, are not sufficient, in law, to make the ex*537ecutor competent, the chance that the law allowing him commissions, may be repealed, cannot have that effect. For though the law be alterable, a possible change is not an event which the courts recognize as a contingency affecting present interests. It is the design of the Act of 1824 to guard the execution of wills of personal property, by removing all temptation of interest from the witnesses to whom it commits the testator in the final disposition of his worldly goods. A legacy or benefit given by a will creates a present interest at the time of its execution, which may be defeated in certain contingencies. The present interest predominates, in the act of attesting and subscribing the will. The temptation of an executor or legatee to practice fraud or imposition on a testator in extremis, would not be much lessened by any of the contingencies which are relied’ on to maintain his competency.

It is further contended, that if the commissions would disqualify an executor from being an attesting witness, the interest or benefit is made void, and his competency restored, by the statute 25 Geo. 2, c. 6. (k) That statute provides “ that if any person shall attest the execution of any will or codicil, to whom any beneficial devise, legacy, estate, interest, gift, or appointment, of or affecting any real or personal estate, other than and except charges on lands, &c. for payment of any debt or debts, shall be thereby given or made, such devise, &c. shall, so far only as concerns such person attesting the execution of such will or codicil, or any person claiming under him, be utterly null and void, and such person shall be admitted as a witness to the execution of such will or codicil, within the intent of said Act; notwithstanding such devise,” &c.

The authority of this statute, though more than once referred to in the decisions of this State and recognized as of force, is now disputed, principally on the grounds, that it was not inserted by Judge Grimke, in his collection of the “Public Laws;” and that some cases to which'its provisions applied, have been decided without reference to them; and that the Parliament of Great Britain possessed no authority to legislate for the internal affairs of the Colonies.

*538It is n~t material to inquire why it was not inserted in the "Public Laws," if it can be shewn that it should have been.

"An Act for the better regulating the Court of Common Pleas," &c. passed in 1737, (l) vests in that court "all and singular the powers, &c. in all civil causes within this Province, in as full and ample manner as the Courts of Common Pleas, E~t Westminster, exercise ;" with a proviso, that the Act shall not "be construed to give any power or authority to the said court to execute or put in force any statute of Great Britain, wherein the plantations in America are not particularly and specially named; or which do not, by the intent and purview of such statute, extend to the said plantations." "An Act to supply the defects in evidence where original wills cannot b~ produced," &c. passed in 1759, (m) recites the statute 29 Car. 2d, c. 3, and the statute 25 Geo. 2d, c. 6, as made to extend to the Colonies, where the said statute 29 Car 2d, had been received as law, and as having "the same force and effect in the construction of, or for the avoiding of doubts upon, the said Act of the twenty-nipth of King Charles the second, in the said Colonies, as in England." And also reciting that many persons, having real estate in the Province, might depart this life, out of this Province, "leaving wills made agreeable to the said Acts," proceeds to enact that an authenticated probate of the will may be received in evidence in such cases.

The constitutions of 1776, (n) 1778 (o) and 1790, (p) provide that all laws of force shall so continue, until altered or repealed by the Legislature.

These Acts unequivocally recognize the authority of. the British Parliament to legislate for the colonies, and the binding force of all statutes in which ~he Colonies are particularly named, and especially of the statute 25 Geo. 2, c. 6. In 1 Story's Commentaries, (q) it is affirmed, on the authority of Marshall, Pitkin and `Jefferson, that "in the Middle and Southern Provinces, no question respecting the supremacy of Parliament, in matters of general legis*539lation, existed.” It was declared by ¡the Congress of the nine Colonies, assembled at New York, in October, 1765, (r) in which South Carolina was represented, that the colonists “ owe the same allegiance to the Crown of Great Britain that is owing from his subjects, born within the realm, and all due subordination to that august body, the Parliament of Great Britain.” But it is added, there is a material distinction in reason and sound policy, between the necessary exercise of Parliamentary jurisdiction, in general Acts for the amendment of the law, and the regulation of trade and commerce through the whole Empire, and the exercise of that jurisdiction by imposing taxes on the Colonies, thus admitting the former' to be rightful, while denying the latter. It was not until after the year 1774, and after absolute independence was in the full contemplation of the Colonies, that an utter denial of all Parliamentary authority was maintained.

Whether this recognition of the Parliamentary jurisdiction over the Colonies was conformable to abstract theories of government, it is not important to inquire. It is sufficient that such jurisdiction was acknowledged, at the time this statute was recognized. The force of the Act, at this time, is not affirmed on the admission of the power of Parliament, but on the ground of its enactment by the Colonial Legislature. In the Act of 1759, the statute of George the second is affirmed, as of equal effect with the statute of frauds, which had been expressly enacted; and by the Act of 1737, the Court of Common Pleas is empowered to enforce it. On much less authority, the statute of 5 Geo. 2, c. 7, (s) “for the more easy recovery of debts in his Majesty’s Plantations and Colonies in America,” was admitted by Judge Grimke into his collection of “ Public Laws,” and has universally been received in practice; the only recognition of that statute being found in a reference to it, in the insolvent debtors’s Act, as furnishing the form of an affidavit. At the time that the constitutions of 1776, 1778 and 1790 were adopted, the statute of 25 Geo. 2, was of *540force, and all doubts respecting its validity, are settled by the supreme authority of those instruments.

The authority of this statute is supported by frequent judicial recognitions of it. Snelgrove vs. Snelgrove, (t) was a bill for the partition of the estate of Henry Snel-grove, by the heirs, against William Snelgrove, the devisee. The will was executed in the presence of three subscribing witnesses, of whom the defendant was one. It was held that credible, in the statute of frauds, means competent, and refers to the time of attestation, and that the attestation of William Snelgrove was a “ mere nullity.” The case of Anstey vs. Dowsing, (u) was affirmed as “ exactly conformable to the rules of the common law.” To the argument, that though William Snelgrove could not prove the will in his own behalf, he might do so in behalf of his co-defendants, to whom he had sold part of the land devised, the Chancellor replies, of rvhat avail would that be to the defendant in this case. “He is sole devisee, in fee, of the land of the testator, and if he can only be let in to prove the will by the devise to him being void, he might as well lose the devise by not proving the will, as by giving up his devise to be admitted a witness. Quacunque via data, he must lose it.”

The operation of the statute is admitted by an express reference to it in the former part of the decree, in connection with the case of Anstey vs. Dowsing, and the effect of the statute is plainly acknowledged, when it is affirmed that the competency of William Snelgrove could only be restored by making void the devise. It is explained how the statute could have no application for the benefit of the defendant, since it was immaterial to him whether he lost the land devised, by the forfeiture of the statute, or for want of a sufficient attestation of the will. Another case is that of Woodberry vs. Collins’s Ex’or s. (v) which was a bill by a legatee for life, against the executor, for the delivery of certain negroes, bequeathed to her by the will of J. Collins. Her husband was one of the attesting witnesses. The first question made in this case was, whether the legacy *541to complainant was void, agreeably to the statute of 25 Geo. 2. The decree intimates, but does not affirm, the competency of the attesting witness, on the ground of his interest being contingent; and that he was dead at the time of the decree, and could take no benefit from the bequest. It was also argued that “the will had been proved in a court of competent jurisdiction and “had the legacy been sued for in the court where the will was proved, it must have been adjudged to the complainant.” It is further urged that “the will would have been good without any witness at all.” The conclusion of the decree is, “ that under all the circumstances of the case, and the particular mode by which the bequest is made,” by which the interest of the husband is merely contingent, and “ that as no act of his gave efficacy to the will, but it was proved by witnesses altogether competent, therefore, the statute can have no operation in this case, but that the bequest is a good one.” The case does, therefore, expressly recognize the statute ; and decides that the bequest was good, because the will, being of personal property, was valid without any attesting witness, and, therefore, not within the provisions of the statute.

In Richardson vs. Richardson, (w.) the statute is affirmed to be of force, though that question did not necessarily arise in the case.

In Loxondes vs. Lowndes, a circuit decree not appealed from, it was also affirmed.

Against these authorities the only case that can be adduced, is that of Dickson vs. Bates, (x.) That was an action of trespass to try title. The plaintiff claimed under a will to which all the .subscribing witnesses were legatees, and he was non-suited. On appeal the non-suit was affirmed. The reporter adds, the Judges “observed,” that if the legatees had released, their competency would have been restored. From this very loose and imperfect note of the case, and from what the Judges “observed," no inference can be supported that the Statute was not then of force. The dictum, made obviously without argument or *542consideration, cannot be allowed any weight in opposition to the cases cited to the contrary.

As well by legislative as judicial recognition, the statute is of force.

It is contended that if the right to commissions be such an interest as makes the executor an incompetent attesting witness, the interest or benefit is made void by the statute of 25 Geo. 2, and his competency restored.

Wills of persona] property are not within the mischief or remedy of the statute, since at the time the statute was passed, and when it was adopted in this Province, no attesting witnesses were required to the execution of them. The statute of frauds was never understood to extend to will» of personal property; and' the attestation of a witness, in the English Ecclesiastical Courts, prior to the statute 1 Victoria, c. 26, as in our Court of Ordinary, prior to the Act of 1824, was a mere nullity. The Ecclesiastical Court did not regard the attestation of the will, nor refer the competency of the witness to that period, but only looked to the prof of the will, and the competency of the witness at the time his evidence was offered, and if then incompetent, his competency might be restored by a release of any interest or the removal of any disqualification which might then affect him. Brett vs. Brett, (y.) In this case Sir John Nicholl says, if a will of personal property is attested by subscribing witnesses, who are also legatees, the attestation is considered void, and each witness is regarded “in the double character of a subscribing witness and legatee; not in the light of no legatee in law, but in that of no subscribing witness.” And “if of two subscribing witnesses to a will one is a legatee, the affidavit of one person is required to probate of the will in common form, as if the will were subscribed by a single witness. If both subscribing witnesses are legatees, an affidavit of two persons to handwriting is then required, just as it would be if - the will were wholly unattested.” In Cartwright vs. Cartwright, (z.) Sir Wm. Wynne, in delivering judgment, affirms that even when the will is contested it is not necessary for the party propounding the will to call the attesting witness.

*543But three or four credible witnesses being required by the statute of frauds, to attest and subscribe devises of land, the common law courts looked to the competency of the witness at the time of attestation. If then competent, though disqualified from giving evidence at the time the due execution of the will was at issue, by subsequently acquired interest or infamy, the attestation was good ; and on the contrary, if not then competent, for any cause, by no release ofhis interest or removal of other disqualifying circumstance before the time of trial, could the incompetency be removed, (a.) To get over the common law difficulty, the statute of Geo. 2d. makes void all beneficial interests to attesting witnesses to devises of lands; and thereby prevents that they should ever be incompetent to prove the execution of a devise of land by reason of any benefit they might take by the will.

It. seeems clear that,such was the intention of the statute. The title expresses its object to be “the putting an end to certain doubts and questions, relating to the attestation of wills and codicils, concerning real estates.” The preamble, in pursuance a'nd more full explanation of the title, recites the requirement of the statute of frauds, that all devises and bequests of lands shall be attested by three or four credible witnesses, and that doubts “had arisen who are to be deemed legal witnesses within the intent of the said Act.” It is well known that after the passing of the statute of frauds, questions and doubts respecting who where credible witness, within its intent, divided the profession and the courts, and created great alarm for the safety of titles to real estates acquired by devise. In Anstey vs. Dowsing, which was decided in 1746. C. J. Lee, with the Judges of the Common Pleas, held that credible witnesses meant legally competent, and that the competency related to the time of attestation, and that incompetency, existing at the time of attestation, by reason of interest or infamy, or for any other cause, could not be restored by a release or other removal of disqualification. This decision *544seems not to have received the assent of the profession. On the contrary, Lord Mansfield, with the Court of King’s Bench, held in Windham vs. Chetwynd, (b.) decided in 1757, a case arising before the statute, that credible, in the statute, was to be understood merely in its popular sense, as importing respectable and worthy of belief, and admitted to proof a will attested by three legatees. Lord Camden added the authority of his great name to the decision of Anstey vs. Dowsing. It was to compose these grave dissensions that the statute was passed, and its ¡mo-visions are directed to the settlement of the vexed and agitating questions. The history of the statute thus confirms the intention so clearly expressed in the title and preamble.

The general rules for the construction of statutes are various and not very consistent. Thus in Copeman vs. Gallant, (c.) Lord Cowper would by no means allow that the preamble should restrain the enacting clause, which opinion Lord Hardwicke, in Ryall vs. Rowles, (d.) disapproved. Judge Blackstone, in his commentaries, (e.) directs, as the first rule for the construction of statutes, to consider the mischief and the remedy, and enjoins it as the duty of Judges to suppress the mischief and ad vanee the remedy. The rule is exemplified by the statute of Elizabeth, making void all leases by ecclesiastical persons for a term exceeding twenty one years. The mischief intended to be prevented was the undue appropriation of Glebe land by the incumbent, in the grant of long leases, to the prejudice of his successor. The statute was construed not to avoid the lease during the life time of the lessor, though the term extended beyond twenty-one years. Our recording Acts afford another striking illustration. To this controlling principle all rules must be subordinate. To insist that the enacting clause cannot be restrained by the manifest intention, expressed in the title and preamble and otherwise clearly ascertained, is to sacrifice the end to the rules by which it should be attain*545ed, and is subject to the censure of Lord Coke, “qui hceret in litera hceret in cortice”

The mischief intended to be cured by the statute of 25 Geo. 2, being expressed in the title and preamble and confirmed by its history, the enacting clause proceeds, that “if any person shall attest the execution of any will or codicil,” “to whom any beneficial devise, legacy, estate, interest, gift or appointment, of or affecting any real or personal estate,” “shall be thereby given,” “such devise (fee. shall, so far only as it concerns such person attesting the execution of such will” &c. be void; and “such person shall be admitted as a witness to the execution of such will or codicil, within the intent of the said Act.”

It is to be noticed that the statute provides that if the attesting witness to “any tvill or codicil” shall take a benefit thereby, the benefit shall be void. Because to “any \Vill or codicil,” it is not added, “devising land,” it is assumed that the statute extends to wills of personal property. The manifest intention, apparent from all the provisions of the statute, would seem sufficient to repel such a construction, and if Judge Blackstone’s rule be applied, it would settle the question. But the construction may be repelled by the very letter of the statute, and it be shewn that the enacting clause itself is limited in its operation to devises of land. The whole effect and design of the enacting clause are expressed in the last member of it, making such person as may attest and take a beneficial devise <fec. a witnes to the execution of such will, within the intent of the said Act. “The said Act,” that is, the statute of frauds, makes an attesting witness necessary only to devises of land. The clause only restores the competency of attesting witnesses to wills within the intent of “the said Act” — “such will or codicil,” therefore mean a will or codicil devising land.

The other sections of the Act confirm this view. The second section enacts that a creditor may attest the execution of any will or codicil, charging lands with debts. This section is confined, in terms, to devises of land.

The third section provides that a legatee who shall attest any will or codicil, having been paid, or having re*546leased, his legacy, may prove the execution of it. This was very important to devises of land, but unnecessary with respect to wills of personal property, since such witness was not necessary to prove the execution of it, and even if he were, the payment or release of his legacy would have restored, his competency.

The fifth section enacts that if a legatee, who shall attest any will or codicil, shall die in the life time of the testator, or before he shall have been paid or released his legacy, he shall be deemed a legal witness to the execution of such will. This also has no application to wills of personalty.

It is to be observed that every section mentions only attesting witnesses, and-make them competent to prove the execution of the will, thereby confining the operation of the statute to those doubts and questions of evidence which are recited in the preamble.

But whatever question may be made respecting the construction of this statute in England, the terms in which it is extended to the Colonies are clear of the ambiguity which raises a question on the first section. The tenth section recites that whereas in some of the British Colonies the statute 29 Car. 2d. has been received for law, “whereby the attestation and subscription of witnesses to devises of lands,” are required, “therefore, to prevent doubts which may arise in the Colonies in relation to the attestation of such devises of lands” it is enacted that the statute shall extend to such of the said Colonies where the said Act of 29 Car. 2d. is made of force, “or where, by Act of Assembly or usage the attestation and subscription of a witness or witnesses are made necessary to devises of lands,” and shall have the same effect for avoiding doubts upon such Acts of Assembly and laws of said Colonies, as for avoiding doubts upon the statute 29 Car. 2d. in England.

In this section the operation of the statute is expressly limited to the avoiding of doubts respecting the attestation of devises of lands, whether under the statute of frauds or other law of the Colonies, requiring the attestation of such devises, and it is declared to have the same effect in the construction of such Acts of the Colonies, as in construing *547the statute of frauds in England. By an obvious and necessary relation, this section manifests the intention of the Parliament to confine the words, “any will or. codicil” in the first section, to devises of land, for it declares the law extended to the Colonies, to be the same as that made by the statute for England. But whether this construction be adopted or not, is immaterial, since the operation of the statute, when extended to the Colonies, is expressly limited to devises of land, so that whether the letter or the intention of the statute prevail, as the rule of construction in this State, wills of personal property are not included in its provisions.

When it is considered that every section of the statute provides for the competency of the attesting witness to the execution of any will or codicil, by making void any benefit he may take under it, in order that devises of land should not fail, and that the attestation of a will of personalty is a mere nullity, and that in all cases in which the statute mades void any benefit taken by the attesting witness under the will, in order to restore his competency, an attesting witness to a will of personal property is not necessary to prove its execution, and that the interests which are made void by the statute may be released or extinguished at any time before such witness may be called to support the will, to extend the operation of the statute to wills of personal property, does seem to be worse than a vain thing. It was very important that devises of land should be preserved, and if Parliament saw fit to preserve them by the forfeiture of the interest of the attesting witness, at least a great measure of public policy was served, but in regard to wills of personal property the forfeiture would be inflicted without any compensating public good.

The question whether this statute extended to wills of personal property was first made in 1811, in the case of Lees vs. Summersgill, (f) and Sir Wm. Grant decided that it did. The case illustrates the useless hardship of such a construction. There was no contest about the will. The bill was filed by the residuary legatee against *548the executor for an account. The defendant, who was an attesting witness, claimed to be allowed a specific legacy-given by the will. It was taken for granted in the argument that his evidence was not necessary to prove the execution of the will. But the legacy was decreed to be forfeited by the statute. Sir William Grant put the decision on the ground that the first section extended to “any will or codicil,” and could not be restrained by the intention expressed in the title and preamble • but principally on information received from the practitioners in Doctors Commons, that the statute was, in the practice of that court, received to be of force; for the point had never, even then, been decided in that court. In Brett vs. Brett, Sir John Nicholl reversed the decision of Sir Wm. Grant, on the ground that no such practice had ever prevailed in the Ecclesiastical Court as Sir Wm. Grant had assumed. This case has been confirmed by Emanuel vs. Constable, (g) and Foster vs. Banbury, (h) and is well established law. These authorities are supported by Woodbury vs. Collin’s executors.

But it may be argued, that though prior to the Act of 1824, the stat. 25 Geo. 2 did not extend to wills of personal property; yet that, by construction, its provisions should be extended to that Act. All law derived from legislative enactment, must proceed from the will of the legislature, expressed or necessarily implied. The authority to subject wills of personal property under the Act of 1824, to the operation of the statute 25 Geo. 2, cannot of course be derived from any expression of intention by the legislature, in adopting that statute in 1759. It could not have anticipated an Act passed 60 years afterwards. No such intention is expressed in the Act of 1824, nor can it necessarily be implied. If it is to be presumed, in giving effect to legislative acts, that the law, however obscure or unknown to its professors, was fully present to the attention of the legislature, then the settled construction of the statute, as limited to devises of land, must have been known, and the *549omission, by express enactment, to extend its provisions to the Act of 1824, should be construed to exclude them.

It may be admitted, that all statutes in pari materia, are to be construed together. But real and personal properly are not more distinct in their existence, than the rules of law which govern the transfer and succession to them. The law relating to each, forms a distinct system. It cannot, therefore, be affirmed that a statute relating to devises of land, by necessary implication as being in pari materia, should extend to bequests of personal property. It does not follow, that because, in 1759, the legislature would preserve a devise of land, by making void any interest of the attesting witness under the will, that bequests of personal property should be maintained by the same sacrifice. The law of primogeniture, which vested the whole real estate in the heir male, made the power to dispose of lands by will to other objects of the testator’s regard, very valuable. Sufficiently so, as a matter of public interest, to forfeit any interest of the attesting witness for the accomplishment of the will. But the equitable partition of real and personal property, by the law of this State, among those nearest in blood and affection to the possessor, in a great measure relieves intestacy from hardship.

When, by the statute 1 Victoria, c. 26, wills of personal property were required to be attested in the same manner as devises of land, the provisions of the stat. of 25 Geo. 2, were by express enactment extended to them also. This is high authority that the stat. of Geo. 2d, cannot be construed to extend to wills of personal property. To do so by judicial construction, will effect that for which an Act of Parliament was necessary. When it is doubtful, even, whether a statute extends to objects beyond its clear and express terms, a judicial construction so extending it, partakes very much of the character of legislation. This it seems most proper to refer to the appropriate department of the government.

The opinion of a majority of the court is, that one appoint- v ed executor, by his right to commissions, takes an interest ¡ by the will, which renders him an incompetent attesting wit-J ness under the Act of 1824; and that the stat. 25 Geo. 2, *550c. 6, is of force in this State, but the competency of the attesting witness is not thereby restored.

The decision of the circuit court is reversed, and it is ordered that judgment be entered on the special verdict in favor of the appellants, from the decision of the Ordinary.

Johnston and Dunkin, CC. concurred.

Richardson, J. * and Harper, Ch. were absent at the hearing.

O’Neall, J.

In this case I agree that the executor, John P. Williamson, was an incompetent witness to the will, whether the statute of 25 Geo. 2, c. 6, is or is not of force; and in that point of view, the decision that it is of force, is unnecessary to this case, and would therefore be no authority ; yet,' as successive uncontradicted dicta have an influence to make that law, which never would be so regarded without them, I propose to state, briefly, the reasons why I think it is not of force in this State.

It is true, that the stat. 25 Geo. 2 c. 6, (a) in terms declares that it shall bind the Colonies ; yet, standing alone on that, I should not be disposed to say it ever had the effect of law in South Carolina. South Carolina had her own legislature, and the Acts passed by it had the operation of law. The only restraint upon this power was that of the crown ; but such a thing as two legislative bodies clothed with power to make laws on the same subject, did not then exist. But there is no necessity to pursue this farther. For I admit, from the recitation in the Act of 1759, (b) that if there was no subsequent legislation varying the matter, that might be regarded as an authoritative acknowledgment that it was of force.

But I think the Acts of 1789 (c) and 1824, (d) have established laws of our own, independent of the stat. 29 *551Car. 2, c. 3, regulating the execution of wills; and that, therefore, the statute of Geo. 2, which was intended to explain the statute of Charles, cannot be regarded as applying to subsequent laws enacted without any, even the slightest, reference to it.

The only case acknowledging the statute to be of force, until very recently, is that of Woodberry vs. Collins, (e) In that case the will was made in !86 — the testator died in ’89 — but whether before or after our Act on the subject of wills, which was passed March ’89, does not appear. From that that case down tq Richardson vs. Richardson, (f) there is not even a hint in one of the cases, that the statute is of force. By universal consent, it seems to have been treated as if it were not. Judge Grimke, in his Law of Executors, 71, 72, 73, gives the stat. 25 Geo. 2, c. 6, at length; and on the 73d page makes these remarks, “ although it never has been judicially determined whether this Act is of force, and operates with us, and that 1 had such great doubts upon it, notwithstanding the declaration in the 10th section, as not to insert it hi the compilation of the Public Laws, yet finding that there is a very great difference in opinion amongst the gentlemen of the bar, concerning the same, I have inserted it here, for the satisfaction of those who consider it as of force — and to give those of adverse sentiments a further opportunity of canvassing the subject, and bringing it one day or other to a legal decision.” He also states that Mr. Lining, the Ordinary of Charleston, had assured him there never had been but one case in which the objection could have arisen and there, the legatee witness renounced the legacy and was sworn. Egan vs. Egan: That case began in ’86, and was decided in ’88, before the Act of ’89 ; and surely, if it was so doubtful then whether the statute was of force, as to require a renunciation of the legacy by the witness, the doubt was increased tenfold by the Act of ’89.

Our Act of ’89, in the 2d and 3d sections, authorizes all persons — except feme coverts, persons of unsound mind, and infants — to make wills, and prescribes the mode and *552manner of execution. These provisions are without any reference to previous enactments, and stand, therefore, as constituting an entire system. It is true, the 3d section is nearly, though not exactly, a transcript from the statute of Charles 2d. If the legislature. had intended that the statute of Geo. 2 should have been also the law, is it not probable, when they introduced the provision of the statute of Charles into a new Act, that they would also have re-enacted it ? I have no doubt of it, and Judge Grimke might therefore very well exclude it from his publication of the laws. The facts, that he did so exclude it, and that in ’97 he expressed the doubt which he did in his Law of Executors — and that for more than 40 years no case can be found in which it is declared to be of force — constitute Such an array against it, that I think it would be hazarding a great deal for the court to say it was of force. It would be little short of the court exercising legislative powers.

But cases can be found which have proceeded upon principles utterly irreconcilable with the. notion that the stat. 25 Geo. 2, c. 6, was of force.

In Dickson vs. Bates, (g) all the witnesses were legatees, and it was held that they were incompetent, and that the will could not be proved. This was in 1802 ; if the stat. of Geo. had then been regarded as of force, no such decision could have been made. For if it were of force, then the legacies were void, and the witnesses competent.

In Snelgrove vs. Snelgrove, (h) Chancellor DeSaussure, whose learning and ability would have led him to point the country to this statute if it had been of force, passes it by without any such intimation, although he had occasion to comment on it, and decided that the witness was incompetent, who, possibly, might have been competent if the statute had been of force. This, Chancellor Harper states and concedes, in Richardson vs. Richardson, and in his circuit decree, on that ground, declines to hold the statute to be of force. The Court of Appeals, in the same case, simply say, arguendo, we see no ground that the statute *553should not be held to be of force. That was no decision that it was of force, and the view now taken was not looked to in deciding that case. So far as authority is concerned, it seems to me that the case of Garland et al. vs. Crow, (i) is decidedly against the statute being regarded as of force. See the MS. opinion on file, December, 1830. There, the witnesses were legatees, and the court entered into a minute calculation, to shew that they took less under the will than they would as distributees; and hence, that they were good witnesses, as swearing against their interest. If the statute were of force, their legacies were void, and they were good witnesses. Hence, the case is against the idea that the statute is of force. The force of authority is against the argument, in Richardson vs. Richardson.

But independent of authority, the statute of Geo. 2 in its terms refers to, and was intended to- explain doubts on, the statute of Charles 2. How such an Act can apply to a subsequent Act, such as that of 1789, is difficult to conceive; but if that difficulty can be got round by construing the Act of 1789, and the statutes of Car. 2, and Geo. 2, as in pari materia, what is to be said of the Act of 18241 It is upon a subject, personal estate, to which the statute of Charles did not at all extend.

How the statute of Geo. 2 can make legacies to witnesses void under it, I confess is á question which I cannot legally answer ; and, therefore, I conclude it does not.

To hold the statute of Geo. 2, now to be of force, will lead to incalculable mischief. Legacies will be made void, and children will be stripped of every thing, by wills to which they may have incautiously put their names as witnesses. The case of Garland vs. Crow will be an illustration. There the witnesses had legacies or devises in remainder, after the death of their mother. They were held to be good witnesses, taking less under than against the will. Suppose the tenant for life to be now alive — at her death, what will be the situation of the witnesses ? They will be told, (if the statute of Geo. 2, be of force) you proved the will — the legacies or devises to you are void, *554and, therefore, you lose your entire portions of your father’s estate. Could such injustice be tolerated, especially when it is known to result from judicial construction, giving life to an English statute which had been dead and buried, in this State, for more than sixty years ?

Every consideration satisfies me that the statute of 25 Geo. 2, c. 6, is not of force; and having stated my views, I have discharged the duty which, as a public magistrate, I owe to the people; and if, on a case involving the question, and necessary to its decision, it be decided that the statute is of force, no one will more faithfully enforce the decision than I shall. But until then, I hope it will be regarded as an open question, and that the learning and talent of the bar will be devoted to its examination, so that on some future occasion a true and just conclusion may be attained.

JohnsoN, Ch.

I concur in this opinion, except as to the power of the British Parliament to enact laws for the government of this State, when one of its Colonies.

Richardson, J. concurred.

Evans, J.

dissenting Without going into the argument, I shall state my conclusions on the important points embraced in this case.

1. That the statute of Geo. 2 is of force, and that the office of executor is such a beneficial interest as brings him within its provisions.

2. That the statute of frauds, the statute of Geo. 2, and our Acts of 1789 and 1824, are to be construed in pari materia, being all on the same subject; and, therefore, the statute of Geo. 2 applies as well to personal as to real estate.

It follows, from these propositions, that Williamson’s office of executor was taken away altogether by the statute of Geo. 2, and, therefore, he was competent to attest the will of Henry Taylor, as well for the personal as the real estate.

Butler, J. concurred.

Wardlaw, J.

dissenting. Must this will of real and personal property, which is offered for proof in solemn *555form, although unexceptionable in all other respects, be necessarily rejected, as insufficient, under our Act of 1824, to dispose of the personal property, because one of the three subscribing witnesses is nominated as an executor?

I state the question in this form, because I regard all the acts of Williamson, (the attesting executor) subsequent to the attestation, and his death, as wholly immaterial. If the will was good, he cannot have destroyed it. If he has received what the law did not authorize him to take, other persons shall not thereby be prejudiced. We must have reference to the moment immediately succeeding the attestation, and decide the question as if the testator had then died, and the will had been instantly presented for probate.

If an executor's right to commissions be not a beneficial interest given .to him by the will, then, in my opinion, this will would be good without reference to the statute 25 Geo. 2, c. 6, but in the view which I have taken, it is material to shew that that statute is of force here.

It was of force by the efficacy of its terms, extending, as they did, its provisions to certain Colonies, of which this was one. If common law and history did not make this plain, the first (a) and second (b) sections of our Act of 1712, and the proviso (c) to the sixth section of the Act of 1737, surely do. The incidental reference to this statute as an existing law, which is made by an Act of 1759, (d) shows, more clearly than any formal confirmation of it could have done, the acknowledgement then made of its inherent vigor, and supplies, for those who think it necessary, a recognition by the Provincial Legislature.

Has it been repealed? It has been said that it was an amendment of the fifth section of the statute of frauds, and that a re-enactment of that section, without the amendment, which the second section of our executors's Act of 1789 (e) contains, was a repeal of the amendment.

Repeals, by implication, are never favored. Those who adopt the law of Anstey vs. Dowsing, (f) as it has been explained and enforced by Lord Camden, (g) should hesi*556tate long before they go beyond the plain sense of our Act, to establish the repeal of a statute designed to prevent the mischiefs of that law. But waiving all considerations which may be supposed to have influenced the legislators of 1789, let us now confine our view strictly to what they have done.

The Act of 1789 is a general summary of statutory regulations concerning executors and administrators, necessarily requiring for its understanding an examination of previous enactments; and I think that all previous enactments were left of force, which were not either expressly repealed or contradicted by necessary repugnancy. To shew that previous enactments concerning wills, executors, administrators and ordinaries, were left out of this summary, and yet remained unrepealed, I will give two instances, selected from many that might be presented, because they have some connexion with the subject in hand.

First. In 1734, (h) (on account, no doubt, of some application of the civil law rules respecting the competency of persons to prove a will, having been made to the term “ witnesses,” used in the nineteenth section of the statute of frauds, which relates to nuncupative wills) it was here enacted, “that all witnesses which are good witnesses at trials at common law, shall be good witnesses to prove a nuncupative or verbal will, made of goods and chattels agreeably to the statute of frauds.” The fourth section of the Act of 1789 re-enacted, with slight variations, the nineteenth section of the statute of frauds, respecting the terms “three witnesses,” but it has never been considered that thereby the above amendment or exposition made by the Act of 1734 was repealed, and the civil law rule as to the competency of the witnesses restored.

Second. An Act of our Legislature, in 1745, (k) gave commissions to executors, administrators, guardians and trustees; in one (l) section fixing the rate, in another providing a mode of obtaining extra compensation for unusual trouble, and in a third, directing how the commis*557sions shall be divided between several. The Act of 1789 repeated the first and third of these sections, as to executors and administrators, and omitted the second; yet it was never held, either that guardians and trustees were excluded from commissions, or that executors or administrators were prevented from resorting to the'former mode of obtaining extra compensation.

The statute of 25 Geo. 2, passed to quiet the alarm created by the opinions expressed by Ch. J. Lee, in Anstey vs. Dowsing, in eifect. placed every subscribing witness of a will containing devises, to whom any beneficial interest was given by the will, upon the same footing as before the statute had been a witness to whom a void devise had been'made; and thus settled what should be the future meaning of credible, as applied to witnesses in the fifth section of the statute of frauds.

When the Legislature, in 1789, used the term credible, it must, therefore, have used it in reference to the law then existing ; that is, as signifying one who was either competent before the statute of Geo. 2, or whose competency was established by force of that statute. Can it be supposed that the Legislature intended that all the devises of a will should be void, because a trifling legacy was given to a witness, who may have subscribed without knowing that he was a legatee, and even without the testator’s knowing that he was a witness 1 (m) Or else, that the intention was to refer the competency of the witnesses to the time of examination, and not to the time of attestation, so as to make the validity of the will depend upon circumstances which no caution could control, or to preserve which, great temptations to fraud and perjury would be held out? Neither of these suppositions seems to me so probable, that it should be sustained by implying the repeal of a statute, as to which the Legislature has been silent, and which is entirely consistent with the subsequent enactments.

The decisions made in this State, which have been reported, are, perhaps, not absolutely conclusive in favor *558of this statute of Geo. 2 being of force. Richardson vs. Richardson (n) contains a strong opinion, but the case turned upon other points. Lowndes vs. Lowndes (o) seems, without much examination, to have been rested upon the opinion in Richardson vs. Richardson.

In Dickson vs. Bates (p) the plaintiffs probably preferred a nonsuit to the forfeiture of the legacies, which the witnesses took. Besides recognizing the dangerous doctrine that a rele~tse will establish the competency of a witness to attest, the court seems to have held that if one witness had been made competent to prove, the incompetency of the others to attest, might have been disregarded.

A case in 1794, (q) (although opposed to Hatfield vs. Thorpe, hereafter mentioned, with respect to the efficacy of a release from the husband of the devisee) recognized the statute as then of force. So, also, the statute is recognized in Snelgrove vs. Snelgrove, (r) 1812, but it could not there be of any use to the devisee witness, who was urging the will.

Judge Grimke, in his Public Laws, omitted the statute of 25 Geo. 2, probably because he did not observe its recognition in the Act of 1759, which, also, he omitted. His Law of Executors, in which he subsequently inserted this statute, (without still, as it appears, having discovered its recognition) shews plainly, in various passages, (s) that he did not, for a moment, conceive that it had been repealed by the Act of 1789. It would be difficult to point out any difference in the reasons for declaring them severally to he of force, between this statute of 25 Geo. 2, and the statute 5 Geo. 2, ch. 7, (t) which latter is inserted in the Public Laws, because it was individually referred to in our insolvent debtors's Act of 1759. (u) Both were, by their terms, extended to the Oolonies ; both were recognized by the Provincial Legislature, not as needing sanction, but as prevailing of course; both are of the class of statutes which Parliament was acknowledged to have the power of passing, even when, long after their passage, the power of Parliament *559in matters of taxation and revenue was denied; and both were saved by our constitutions of 1776 and 1778, from repeal by the revolution.

The omission of the statute of 25 Geo. in the Public Laws, (the only published compilation of statute law which was made in our State before 1814) no doubt kept it out of sight on many occasions where it might have applied ; but I think is plainly insufficient to shew that it never was of force here, and certainly could not avail to work its repeal.

Assuming, then, that the statute 25 Geo. 2 is of force here — I argue,

1. That in a suit between heir and devisee, a devise would be good without the aid of this statute, notwithstanding one of three witness was named, and even acted, as executor, if, by the will, no beneficial interest or estate was given to him.

2. That to this condition of executor without beneficial interest or estate — mere trustee — every executor who has attested a mixed will, is reduced by this statute, all benefit given to him by the will having been destroyed at the instant of attestation.

8. That such trustee is a credible witness under our Act of 1824, to a mixed will certainly, if not to one of mere personalty.

4. And that all considerations shewing that such executor cannot prove the will in a court of probates, without renunciation, fall short of shewing that he cannot attest, as they are founded upon reasons presumed to arise after the death of the testator, but not existing at the time of attestation.

In these views, I shall not neglect the important distinctions subsisting between devises and wills of personalty, and between suits inter 'partes, and a testamentary cause like this, which is in the nature of a proceeding in rem; but I cannot exhibit the force of these distinctions, or state the grounds of my conclusion, without reasoning from points that have been settled in cases that differ from this, to the decision which should be here made of similar points, as they shall be found to depend upon the same *560principles, or to be controlled by a difference of circumstances.

1. As the rules of evidence are settled, now that the distinction between an interest in the question, and an interest in the event, of a suit is familiar, and that objections in cases of doubt are held to go rather to credit than to competency, we may say that there is, at common law, nothing which forbids a witness from proving, in a case inter alios, an instrument under which he himself claims a benefit. But it was not until Lord Mansfield’s time, (v) that the present liberality in the admission of witnesses was established, and as we go back into the'times preceding, the more numerous and indefinite we find the grounds of exclusion.

Before the statute of frauds, the civil law, as it was administered in the Ecclesiastical Courts, would not admit any person who took an interest under the will, before release or satisfaction, or even the children of legatees, (w) to prove a will; and the common law courts, either guided by the rule of the Ecclesiastical Courts, or in their jealousy of the bias which similarity of condition produces, misapprehending the nature of the interest which should prevent a witness from being heard, would not, in a contest between heir and devisee, hear the testimony of another devisee, or even of an unsatisfied legatee, in favor of the will. A mere trustee, however, was heard, and of this character an executor without beneficial interest was held to be. (x)

After the statute of frauds, the rules which before had regulated the admissability of witnesses to prove a will in trials at law, were applied in determining the sufficiency of the witnesses who attested a devise. (y) And the case of Anstey vs. Dowsing, (z) in 1746, recognizing the rule before laid down, that all who took any interest under a will, did not fall within the description of credible witnesses required by the statute, carried the rule to its true *561and alarming consequences, by maintaining that no subsequent release, or payment, or other removal of the interest, would make good an attestation, which before was bad.

The statute 25 Geo. 2, c. 6, followed in 1752. This statute assumed, that by the statute of frauds every person who took a benefit under a will, was incompetent to attest it; and removed the incompetency by destroying the interest, except in the cases inadvertently omitted, of an interest in the husband or wife of a witness.

In the case of Wyndham vs. Chetwynd, (a) in 1757, (involving the validity of a devise made before the statute of Geo. 2,) Lord Mansfield was of opinion that the witnesses, under the particular circumstances of that case, took no benefit under the will; but desirous to save devises from the consequences of what he considered the harsh application of an erroneous rule, he went into an examination of the previous cases. He held that the fifth section of the statute of frauds, in effect, provided that every devise should be attested by three witnesses, who, if called on at the time of attestation to prove it, would have ability to do so ; that the devisee, whose devise might be under consideration, would not have such ability, and no release or subsequent act could give it to him for his own benefit; but that every other devisee, and every legatee (if subject to no disability besides the imputation of interest) might prove the devise in question, as a matter inter alios, even without release; or if the suspicion of bias should be held to exclude him, that that suspicion would be removed by a removal of his interest under the will.

Eight years afterwards, Lord Camden, then Ch. J, Pratt, in the case of Hindson vs. Kersey, (b) which likewise involved the validity of a devise made before the statute 25 Geo. 2, where the interest imputed to one of the witnesses was extremely minute, and perhaps uncertain, assailed the doctrines of Lord Mansfield, with an ability which has extorted praise, if not assent, from all who have commented upon his opinion: It has been sometimes said that Lord Camden maintained, in opposition to Lord Mans*562field that credible meant competent, and that the competency should be referred to the time of attestation and not to the time of examination. But it is a mistake to extend the difference of opinion between these great men to either of these particulars. Lord Mansfield had held that competent was included in the terms credible witness, as it would have been in that of witness only, and that the witness must be one who at the time of attestation would have been competent to prove the devise in question,— finding fault, however, with the rule which held all to be incompetent who took any benefit under the will. Lord Camden went much further. He regarded the term credible as important, and considered it to mean not only competent, but much more, that is, free from bias, not subject to the temptation to commit a fraud, or to sustain one by perjury, which might spring from an interest to be taken under the same instrument which contained the devise. He shewed the danger, as well as what he conceived to be the absurdity, of holding that an incompetency to attest, arising from the bias occasioned by an interest created then, could be purged by a subsequent removal of that interest. But there seems to have been in his mind no idea of a disqualifying bias arising from any thing but a beneficial interest in the will, such an interest as had been held in former cases to render a witness inadmissible to prove a will.

The opinion of Lord Camden, as to the inefficacy of a release or other subsequent removal of the bias, was not sustained by the court in which he presided, and the opinion of Lord Mansfield upon that point coincides (c) with all the previous cases except Anstey vs. Dowsing, and it is yet uncontradicted by any decision in England, — although it may be observed that there the statute 25 Geo. 2 has prevented all occasion for its application, except in cases where a husband or wife of a witness took an interest under the will.

In Fowler vs. Welford, (d) 1779, Lord Mansfield yield*563ing, probably, to the declaratory authority of the statute 25 Geo. 2 his opinion that by the statute of frauds the de-visee in question only was disabled for interest, declared that an executor who took under a will a reversionery interest in copy-hold, but did not attest it, would not, in ejectment between the heir and another devisee, have been competent to prove the sanity of the testator, before surrender of his interest. And this was in conformity with what had been, in 1761, done in Lowe vs. Jolliffe (e.) Both these cases, it will be seen, held that an executor without beneficial interest was admissible as a witness in favor of the will, between heir and devisee, although a legatee unsatisfied would not have been admitted. In neither of them was the executor a subscribing witness.

A case in the King’s bench, 1826, Wood vs. Teage (f) decided that an executor who took a beneficial interest under a will, as debtor of the testator, and did not subscribe it, but in ejectment between the heir and devisee was offered to prove the testator’s sanity, was admissible. It was conceded that the statute 25 Geo. 2 would have cut off his right to extinguish his debt, had the executor been a subscribing witness. But it was said that he was admissible, because as to him and any proceeding concerning the personalty, the suit before the court would be res inter alios acta. The reason here given would, before the statute of frauds, have shewn every legatee and every other devisee to be competent between the heir and devisee; and without any rélease or any inquiry into the nature of his interest, would have shewn the executor to have been admissible in Lowe vs. Jolliffe, and in Foster vs. Welford. This case may then be said to have repudiated, in conformity with more enlightened views of the rules of evidence introduced by modern decisions, the old rule that no person could in any cause prove a will under which he claimed a benefit, and so is consistent with Lord Mansfield’s first opinion, but contrary to the law which Ch. J. Lee and Lord Camden, as well as the framers of the statute 25 Geo. 2, assumed to prevail, and which the cases already *564cited acknowledged when they distinguished an executor without beneficial interest from persons held to be interested. The case, however, does not touch the competency of subscribing witnesses. Although the statute 25 Geo. 2, and even the statute of frauds itself, may have been framed with reference to a rule assumed to prevail, those statutes, and the decisions under them, remain untouched by a repudiation of the rule in cases not embraced by them. It must however be perceived that if credible moans competent only, there could, upon the principle established by this case of Wood vs. Teage, have been no reason for holding incompetent to prove the devises in question, the legatees whose interests were considered in Anstey vs. Dowsing, Wyndham vs. Chetwynd, and Hindson vs. Kersey.

In Hatfield vs. Thorpe, (g) K. B. 1822, a subscribing witness was husband of the devisee of the lands in question. The interest was direct in the event of the suit, and no release could make the devise to his wife good, any more than it could have aided one to the witness himself.

Bettison vs. Brunley (h) was an issue between the heir and devisees. There the wife of an executor was a subscribing witness, and the statute 25 Geo. 2 therefore did not apply. The full force of the term credible, as settled in Anstey vs. Dowsing, was recognized, yet the wife was held to be a good attesting witness, because no beneficial interest was given to the executor by the will. If it should be supposed that this case may rest upon the doctrine res inter alios, which we have seen was subsequently applied for the admission of an executor with a beneficial interest who was not a subscribing witness, that supposition cannot be made as to Phipps vs. Pitcher, (i) a case decided in the Common Pleas, 1815. There the devise in question was of a power to sell, without beneficial interest, to the executors, one of whom was a subscribing witness. It was held that they could make a good title — the sufficiency of the attestation resting solely upon the ground that *565the executor, witness and devisee, took no beneficial interest, but was a mere trustee.

I take it' then to be settled, that if no beneficial interest be given to the executor by the will, or if any which would otherwise have been given, be taken away by the statute 25 Geo. 2 at the instant of attestation, the executor may be a witness to attest the devises. Indeed it seemed to be admitted by the counsel for the appellant in the case before us, that the attestation would be good as to the devises — the attesting executor deriving from the will no beneficial interest besides his commissions, and the right to commissions being either an interest not given by the will, or an interest void undei the statute 25 Geo. 2.

2. With regard to the effect of the statute 25 Geo. 2 upon this case, I agree that the term “appointment,” (k) used in the statute, signifies the exercise of a power, and does not embrace the nomination of an executor; and further, that such an executor as in England would be a mere trustee without beneficial interest, does, under our Acts allowing to him commissions, take a valuable right. This right I conceive to be an interest given to him by the will. It is not expressed in the will, but in that it resembles the right to the surplus and the right to have his debt to the testator extinguished, both of which at common law passed tó the executor, if not denied by the will. Like those, I think this might be denied by the will, and the executor accepting the trust would in such case be bound by the condition imposed. (l) This incident of office depends upon statute, those upon common law. This is enjoyed whether there be debts or not, and so far is more beneficial than either of the others. This would be valueless if "the whole property was real estate or was under execution — so in either of those cases would both the others be. This is said not to be given by the will, because it is a compensation for services rendered, and is lost if the services be not rendered in' the manner prescribed by law; the others, too, attach only after the office has *566been, assumed, and assumption of the office compels the performance of its duties. This right is like the salary or perquisites of a public office of profit, measured, or supposed to be measured, by the nature and extent of the duties performed. Every office of profit, not a sinecure, is only an employment by which wages for labor may be gained. If a public officer resigns, the profits of office pass to his successor; the public has not gained, but it does not follow that he has not lost. So if a sole executor should renounce, the same commissions he would have received will pass to an administrator with the will annexed — the estate would not thereby gain, but he would lose ; the interest which without renunciation he would have taken, is what affected his competency as a witness, and as to that it is immaterial to him who may enjoy it after his renunciation.

Upon the right to commissions, I think the statute 25 Geo. 2 operates here, (as it seems to be conceded it does in England upon the other two incidental rights of execu-torship which I have mentioned,) leaving the executor to whom no other beneficial interest is given by the will, a mere trustee. The office of executor itself I think the statute does not take away, because of itself it is in law considered to be a burthen and not a benefit, and it may well subsist without any beneficial incidents. Stripped by the statute of every beneficial interest under the will, either expressed or implied, the executor attesting the will becomes like a person nominated by the will to perform some special service for the estate, as to advise, to arbitrate, or to make partition. His powers are general and large — his temptations greater, but his interest in law is the same.

3. It is objected, however, that the statute 25 Geo. 2 relates only to devises which have been attested in conformity with the statute of frauds ; whereas, the case before us involves the sufficiency of an attestation made under our Act of 1824, (m) which first required attesting witnesses to “ all wills or testaments of personal property,” and required “ three or more credible witnesses,” without any reference to the statute which had been enacted to save devises from *567being made void by the attestation of incompetent witnesses.

Our legislature enacted, as- to the execution of wills of personalty, the very same terms which the statute of frauds had applied to devises; and .as to their revocation, made express reference to real estate for the forms which should avail. It seems plain that the intention was to put both kinds of property upon the same footing, in respect to the formalities of testamentary disposition; and the propriety of establishing uniformity and simplicity in relation to wills, is so manifest, that any construction is much to be regretted that shall make the same will good as to one kind of property and bad as to the other. The wishes of a testator are likely to be thus more completely frustrated, than they would be by rendering the whole will void. Such a construction is, moreover, subject to much doubt, when it shall, under the same words enacted for both kinds of property, reject, as to the personalty, what is held good as to the realty ; although the design of the legislature, at most, could have been only to require for the former the solemnities which the community had long been accustomed to for the latter.

If, however, the statute of frauds as to devises was amended, long before our Act, by a statute which is confined to devises, the repetition, in our Act concerning wills of personalty, of the words of the statute of frauds, would not, without extrinsic aid, extend the amendment also to wills of personalty. Concerning the Act of 1789, we have seen that the question was one of repeal by implication— the question here, is one of enactment by implication.

In the case of a will of mere personalty, there might, then, be great difficulty in shewing how the statute 25 Geo. 2, (if it relates only to wills that concern devises,) could restore the competency of a witness to a will that contains no devise ; who, independent of that statute, would not be considered such credible witness .as is required by the Act of 1824. The difficulty would be avoided by maintaining the position that the stat. 25 Geo. 2, although confined by its title, preamble and 10th section, to wills containing devises, does yet, by its enacting clause, comprehend all *568wills ; and that our legislature must, in 1824, have understood it to be thus comprehensive. This position receives strength from the observation, that the case of Lees vs. Summersgill, (n) in which Sir Wm. Grant held the statute to comprehend wills of mere personalty, was decided in 1811; while the cases (o) overruling that decision, have all occurred since our Act of 1824. Adopting, however, the exposition of the statute given by the later English cases, the difficulty would be overcome if it could be made to appear that all our statute law in relation to the execution of wills, is to be construed in pari materia ; and that the legislature, by carefully adopting for wills of personalty the same terms which had been used as to devises, intended to adopt the meaning which had been affixed to those terms — and so extend to the new subject the statute which had before ascertained the meaning of the terms as applied to the old one.

But however this question might be decided as to a will of personalty only, it is sufficient in the case before us, to say that the will under consideration is not a will of mere personalty, and the difficulty which has been suggested, does not here arise. This is a mixed will, containing many valuable devises; and there never was a doubt that to such a will the statute of Geo. 2 extended, as is manifest from its terms, “ legacy,” and “ of or affecting any real or personal estate.” The legacy, interest or estate, once made void, is as if it had never been given. It is void ah ini-tio — and- no less void in an Ecclesiastical Court than in a court of Common Law. The case before us is, then, just as if the statute 25 Geo. 2 had formed part of the Act oí 1824. At the moment after attestation, all beneficial interest or estate given to the witness was made void, to save the devises, and the witness was thus left free from the objection of interest, a credible witness as to the personalty.

4. What I conceive to be the strongest objection to my views remains, however, to be considered. It is, that independent of all considerations of beneficial interest, an ex*569ecutor cannot be competent, by his own attestation, to give validity to the instrument from which his powers are to be derived.

I assent fully to much that has been said on this head. This is not an ejectment between heir and devisee, nor an issue devisavit vel non-which name has frequently, in our reports, been applied to cases like this, but improperly-but it is an appeal froni the Ordinary; a truly testamentary cause, in which the question is whether the testament has been proved, that is, whether the formal authority for its execution shall be given by the proper tribunal, in the grant of probate to an executor, or in the grant of administration with the will annexed, to the person entitled thereto. In such a cause, all persons having any interest are in some sort parties, for every body is.bouiid by the result, until it be reversed; and the result is conclusive upon all who are belore the court, or have notice, and Their privies, if the will be once proved, it is, against the persons bound by the proceedings, proved for an executor who is absent, as well for one who is before the court-for a legatee oi~ creditor, as well as for an executor. (p)

Devises, on the other hand, are not established by probate. If a will contain no appointment of an executor, and no bequest of chattels, but only devises of lands, it need not be proved in the Ecclesiastical courts of England at all. (q) If it ought to be brought to the view of the Ordinary here, it is only because lands are here sub modo assets, and our legislation has reference to devises in directing the course of proceeding before the Ordinary. (r) It is true here, however, as in England, that there is, as to devises, no ~irobate of the whole ~vill~ but every several de-visee must make out his title in a distinct cause and do novo against every new party. (s)

The great purpose of a testament, is to appoint an ëx-ecutor-for the executor is, at common law, residuary legatee, or, as he has been sometiu~es called, universal legatee. (t) Even without probate, he can exercise most of *570bis powers ; and by acts of intermeddling, he may, before the will has been propounded, place himself in such condition that he will not be permitted to renounce. Even if he should be desirous of renouncing, and have not inter-meddled, he is not permitted to do so, except by solemn act in court; and after the most solemn renunciation, he may, at the death of a co-executor, retract his renunciation and claim grant of authority to exercise his office, (u)

These general propositions shew that it is an error to suppose this case is decided simply by the authorities which shew that an executor without beneficial interest may be a witness to prove a will between heir and devisee, and that by his own attestation he may sustain the devise of a naked power to himself. This error seems to pervade the otherwise instructive' case of Sears vs. Dillingham, (v) which, — -if no commissions were there allowed to the executor, or if all his beneficial interest had been destroyed — -seems to me correct in holding that in a court of probates he might be competent to attest, but not to prove ; but wrong in resting the decision solely upon the cases relating to devises.

In support of the objection now under consideration, it is further to be observed, that the common law rule, which admits an executor without beneficial interest, like an ordinary trustee, to testify inter alios concerning the estate, has not been adopted in equity, (w) but there such executor is distinguished from other trustees, upon the ground that he is liable for devastavits, and so has an interest to increase or discharge the estate.

In the Ecclesiastical Court, too, a person nominated as executor has never been admitted to testify in support of a will without renunciation; (x) although, after renunciation, his testimony has been received for the benefit of the legatees, and then, by consent of all parties, he has been permitted to retract his renunciation, for the benefit of the estate, (y)

The answer to the objection thus fully stated, satisfies *571my judgment. The decisions as to the admissibility of an executor trustee in equity, have regarded him as already in office, subject to liabilities which have accrued since the testator’s death. The practice in the Ecclesiastical Courts is founded upon the reasons that an executor, if a party belore the court, is liable for costs; if not before the court, is yet liable to be affected by the result; and the question of his admissibility always arising after the death of the testator, the court cannot know whether he has a beneficial interest, or whether he has intermeddled, unless he will give the usual and best evidence of his renunciation. (z) But all these decisions, and all the reasons they rest on, it will be seen, do not touch the question of attestation, and of competency to be referred to that instant. Then there could have been no liability for devastavits; — then no in-termeddling, — then no benefit not taken away by the stat. 25 Geo. 2. At that instant, a person named as an executor was as free from all legal notion of bias, as he could be made afterwards by renunciation. At any time afterwards, especially at any time after the death of the testator, the executor, as a person either in form or substance a party, or as a person presumed to have an interest from his acts done, or liabilities incurred, since the testator’s death, may not prove the will — but it does not follow that he could not have attested it; much less that its validity, like his admissibility, shall depend upon whether he will renounce or not.

The executor has, at common law, large powers. He is legal owner of the whole personalty, with almost unlimited powers of disposition over it. By our statutes, the right to the surplus, and the right to have his debt extinguished, (a) have been taken from him, and his power to sell or alien the chattels much modified. (b) But still his powers-are here large ; his responsibilities are great, and the pledges he gives are small, beyond his personal integrity. If he can by law take no benefit, he can by violation of his duties do much mischief. So can any agent to receive, and any trustee to whom the right of possession is corn-*572mitted. But the opportunity to commit a fraud, the temptation to cheat, is no beneficial interest, which disqualifies an agent or trustee from being a witness where he is not a party.

The question now before us could neyer have arisen in the Ecclesiastical Courts of England, but it is worthy of notice that our practice in the Ordinary’s Court, and the appeal which is given thence to the Common Pleas, shew much less prevalence of the civil law rules here than there.in mere testamentary causes. It has not been thought with us that we should go beyond the ordinary rules of common law evidence, in deciding upon the admissibility of witnesses in these appeals from the Ordinary. Our Legislature intended to refer us, for the meaning of credible in our Act of 1824, not to the rules which might prevail in the Ecclesiastical Courts of England, but to common law and established practice. If then the common law be that an executor who has no beneficial interest is competent to testify inter alios in favor of the will, it follows that at the instant of attestation, and divested of all considerations that may have supervened, such executor might have proved the will, and so is a credible attesting witness.

Reference has been made in argument to the late statute of 1 Victoria, c. 26, to shew that the 17th section contains a parliamentary exposition, from which it may be inferred that without that section an executor would not in England have been a good attesting witness to a will of personalty, after attestation was required to such wills. The doubts which had prevailed before Phipps vs. Pitcher, upon the question whether an executor, mere trustee, could attest a devise to himself, and the diversity of opinion and practice between the Courts of Law and Courts of Equity in respect to the admission of such executor in causes affecting the estate, may have given occasion for that section, in a well considered statute intended to settle the whole law on the subject. But it is apparent that that section was not intended to save a will which an executor had attested, or to make him competent to attest, but only to make him admissible as a witness in *573a cause concerning the will, whether he had attested or not, when no objection lay. except his being executor — for the 14th section had already provided that no will should be vacated because a witness was, either at the time of attestation or subsequently, incompetent to prove its execution.

I conclude that there is nothing in our law which unavoidably requires us to say that this will has not been proved. .