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1 Ves. & Bea. 445.

Carlton v.
Griffin,

1 Burr. 549.

The effect of a codicil, on the same sheet of paper with the will, expressly referring to it, as annexed, and confirming it in all respects, except as to the alteration of some legacies, being a re-execution and re-publication, as it would be in the case of a devise of land, there being no difference in this respect between the two statutes.

Sir W. Grant, M. R. held clearly that the appointment of guardians was good; the codicil, attested by three witnesses, adopting the will, and amounting to a re-execution and republication; and a devise of land by the will would have been made good by the codicil.

40. If a will be made at several times, although the parts be distinct, and separately signed by the testator; yet if it appear from circumstances to have been the intention of the testator that both instruments should constitute but one will, and not as a will and a codicil, an attestation of the last part by three witnesses will amount to an attestation of the whole.

41. J. Griffin, on the 2d May 1752, wrote upon a sheet of paper, with his own hand, as follows :"Know all men by these presents, that I John Griffin make the aforementioned my last will and testament." He then proceeded to give two freehold houses, and subscribed it; but there was no witness. In January 1754 he wrote on the same sheet of paper the following words: "Memorandum, whereas I have laid out, &c. on a lighter, &c. and the barge called The Lemon, &c.; all shall be at my wife's disposal; and this not to disannul any of the former part made by me, the 2d May 1752, except that my wife shall not be liable to pay to my son John, &c. Witness my hand, John Griffin."

The will was written on the first and second sides of a sheet of paper, and the memorandum was begun either upon the end of the second, or the beginning of the third, and written upon the third side; and all the second writing related only to the personal estate. The testator subscribed this in the presence of three witnesses; then he took the said sheet of paper in his hand, and declared it to be his last will and testament, in the presence of the said three witnesses; and then delivered it to them, and desired they would attest and subscribe it in his presence, which they accordingly did.

The question was, whether this will was duly attested according to the statute of frauds.

Lord Mansfield said, the case was accurately put; for it was not stated to be either a will or a codicil, but a sheet of paper written, &c. At first, in 1752, the testator did not know that any witnesses were necessary; in 1754 he had found they were necessary; then he made a subsequent disposition, which was a memorandum to be added to it; but he did not call it a codicil, nor did the case state it to be so. He plainly considered the whole as one entire disposition, and he expressly declared in the latter, that he did not thereby mean to disannul any part of the former devise or dispositions. There is not a tittle in the latter that relates to the real estate; therefore the only intent of having the three witnesses was, and must be, to authenticate the former. Then the publication of it was, as of a will; he took up the sheet of paper and said, it is my will; and certainly he did not mean a part only, but the whole of it; and he desired them to attest it: all this must relate to the whole that was written on the paper. Adjudged that · the will was duly attested.

Who may be
Witnesses.

42. With respect to the persons who are capable of being witnesses to a will, the statute of frauds only mentions the word credible; and therefore all those who are capable of being witnesses in any othér matter, may also be witnesses to a will.

The Judges were however formerly very strict with regard to the competency of the witnesses to a will; for neither a devisee, legatee, or creditor, was allowed to be a competent witness to a will.

43. This occasioned the statute 25 Geo. II. c. 6. by which it is enacted, § 1. "That if any person attest the execution of any will or codicil, to whom any beneficial devise, legacy, estate, interest, gift, or appointment, except charges on lands, tenements, or hereditaments for payment of any debt or debts, shall be thereby given or made; such devise, legacy, estate, interest, or appointment 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 Summersgill, be admitted as a witness to the execution of such will or codicil."

Lees v.

17 Ves. 508.

§ 2. "In case by any will or codicil any lands, tenements, or hereditaments shall be charged with any debt or debts; and any creditor, whose debt is so charged, shall attest the execution of such will or codicil; every such creditor, notwithstanding such charge, shall be admitted as a witness to the execution of such will or codicil, within the intent of the said act.

§ 6. "Provided always, that the credit of every such witness so attesting the execution of any will or codicil, in any of the cases in this act before mentioned, and all circumstances relating thereto, shall be subject to

the consideration and determination of the Court and the Jury, before whom any such witness shall be examined, or his testimony or attestation made use of; or of the court of equity in which the testimony ór attestation of any such witness shall be made use of; in like manner to all intents and purposes as the credit of witnesses in all other cases ought to be considered and determined."

414.

44. Two celebrated cases have been decided respecting the competence and credibility of witnesses to a will. The first is that of Wyndham v. Chetwynd, 1 Burr. R. in the Court of King's Bench: and the second is that of Doe ex dem. Hindson v. Kersey, in the Court of Common Pleas. But as they relate to wills made before this statute, it is unnecessary to state them. 45. A legatee may be a witness against a will, because he swears against his own interest, and so is Salk. 691. the strongest evidence.

Oxendon v.

Penrice,

46. An infamous person is not a competent witness to a will; and therefore it was held, in a modern Pendock v. Makender, éase, that a person who had been convicted of steal- 4 Burn Ecc ing sheep was not a competent witness to a will; Law, for it was the crime that created the infamy, and

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95.

47. A will must be aslo published; that is, the Publication. festator must do some act from which it can be concluded that he intended the instrument to operate as his will; and Lord Hardwieke has mentioned a case 3 Atk. 161. where, upon a trial at bar in the Court of King's Beneh, the question was, whether the testator had published his will; for there was no doubt of his executing it in the presence of three witnesses, or of their having attested it in his presence; which showed that publication was, in the eye of the law, an essen

Peate v.
Ongly,

I Com. R.
196.

Trimmer v.
Jackson,

4 Burn Ecc.
Law, 119.

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48. The words, signed and published by the said A. B. as and for his last will and testament, are a sufficient publication: and the delivery of a will, as a deed, has been also held to be a sufficient publication.

49. A will was delivered by a testator as his act and deed; and the words sealed and delivered were put above the place where the witnesses were to sub scribe. It was adjudged that this was a sufficient publication.

50. It has been held in several cases, which will be empower himself to stated hereafter, that where a person, by a will duly give Lands attested, charged his lands with the payment of his by a Will not duly attested. debts and legacies; a legacy afterwards given by a will or codicil, not duly attested according to the statute of frauds, but sufficient to pass personal estate, would be good. From which it was concluded, that a person might by means of a will duly executed, empower himself to make a future disposition of lands, by another instrument, not duly executed. This doctrine, if established, would have been attended with the most serious consequences. For, as Mr. Fearne observes, "if a man might, by a will: duly attested, devise his lands upon such trusts as he should appoint by any other instrument, it would in effect amount to a repeal of the statute of frauds, in respect to the solemnities of testamentary dispositions of land. A man would have nothing to do, but on his coming of age, to make one general repeal of that statute, in regard to himself, by devising his whole real estate to some nominal persons and their heirs, upon such trusts, &c. as the testator should afterwards by any writing appoint: and he

Opin. 435.

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