#### Camp *versus*Stark.

1. A married woman made a will, to which there were no subscribing witnesses, and died in 1858. *Held,*that a devisee in the will in whose presence the will was executed, was not a competent witness under the act of April 1.5th, 1869.

2. The execution of a will is to be judged of by the law as it stood at the time of its execution.

3. Witnesses incompetent at the execution of a will are not made competent by the act of 18.69,

4. Under the Married Woman’s Act of April 11th, 1848, the will of a married woman cannot be *proved*as the will of a person *su,i juris,*but must be executed in the *presence*of two competent witnesses.

5. The will ngt having been executed in the presence of two witnesses then competent, her estate passed to her heirs, and could not be divested by subsequent legislation before probate.

6. One interested under a will at its execution is not competent by the act of 1869 to give *corroborative*evidence of its execution.

7. Alter’s Appeal, 17 P. JF. Smith, 341, followed; Bowen *v.*Goranflo, 23 P. P. Smith, 357, distinguished.

*236March 11th, 1875.

Before Aunew, C. J., Sharswood, Williams, Mercur, Gordon, Paxson, and Woodward, JJ.

Error to the Court of Common Pleas of *Wyoming*County, of January Term, 1874.

This was a feigned issue, framed in the Court of Common Pleas of Wyoming County, February 3d, 1872, in which Druzilla Camp, intermarried with George B. Camp, was plaintiff, and George W. Stark was defendant, to determine whether a certain writing was the will of Theresa Carey, deceased.

The testatrix was married to Renslaer Carey in 1852. She died in 1858, leaving no children, but leaving her husband to survive her. She left also a brother and sister, her only heirs and next of kin, except her husband. Stark, the defendant in the issue, became the owner of their interests. She left the following instrument, which was the writing propounded as her will:

“ Febuary the 28 1858.

the requeste of tresse Carey i want ransler Carey to hav my piase as long as he shall liv i want drusila Carey two stay and keepe house for hur father and marten i want mr carey to give lovica shoop wone shale wone pare of stockings Rozanner dark wone coveled i want cathern stanten to hav my cloak and two Dresses i want [erasure] mr carey to give Won hundred Dolars two the methodus Church i want drusila carey to hav all my houshold ■ property as soon as i am ded. *

and after mr carey is ded i want drusila [erasure] [erasure] carey two hav my farm

Tereisse M carey.”

Renslaer Carey died 1870, leaving a number of children by a former marriage. On the 13th of October, 1871, the will was admitted to probate by the register, an appeal from his decree taken to the Register’s Court December 20th, 1871, and ■ an issue directed by that court to the Court of Common Pleas.

The case was tried August 24th, 1873, before Elwell, P.J.

*Caroline*Dickenson, a daughter of Renslaer Carey, testified: “ That the day before decedent died witness was with her; she requested her husband to procure some one to write her will; he refused to do so; he left the room, and witness asked her how she wished her property to go; she informed witness, who wrote it, as decedent told her. Delilah Carey (now Custard) and Druzilla Camp were present; witness read to decedent what she had written, and she said that was the way *237she wished her property to go; witness wrote decedent’s name, and she made a cross in the presence of Delilah and Druzilla; decedent died on the next day after the paper was written ; witness took the paper to her own home, and it remained in her custody until after Renslaer Carey’s death ; after which it was produced by her to the register.

The plaintiff testified that she had lived with decedent; plaintiff was with her when she died.

It was then offered to prove by her that, on the day before decedent’s death, she sent for Caroline Dickenson to come to her house; that Caroline Dickenson did come; that she was in the room with Theresa Carey; that Theresa Carey requested Mrs. Dickenson to do some writing for her; that the witness saw her sitting by the bedside of Theresa writing; that she heard a conversation between Theresa and Mrs. Dickenson about how she wanted to dispose of her property; that after Mrs. Dickenson had written a paper she read it to Theresa Carey, and she said it was as she wanted it; that she was present and saw Theresa Carey sign her cross or mark to the same in the presence of the witness ; and Caroline Dickenson and Delilah Custard were also present at the time said paper was executed by Theresa Carey, and witnessed the execution of the same.

The defendant objected on the ground that “Druzilla Camp is not competent to prove a devise to herself by a married woman; that hér presence does not answer the requirement of the act of 1848 enabling married women to dispose of their property by will; that her testimony will not serve as a substitute for, nor supplement the evidence of the two witnesses whose presence and proof are required by said act; that she is therefore incompetent for any purpose connected with the execution of the paper in question.”

The Court injected the offer and sealed a bill of exceptions.

The plaintiff read the deposition of Delilah Custard:

She testified:“.... I am a niece of Druzilla Camp. I lived with my aunt in the same house at the time Theresa Carey died. Caroline Dickenson was there on Sunday evening immediately preceding her death.....I heard grand-pap Carey and Mrs. Dickenson talking with Theresa about her things. Theresa wanted Louisa Shupp to have a shawl and a pair of stockings. She wanted Rosanna Clark to have a coverlet. She wanted Kate Stanton to have a cloak and two dresses, and she wanted her husband Renslaer Carey to stay on the farm his lifetime, and Druzilla Carey to have her household furniture and her farm when Renslaer Carey was done with it. This disposition of her property was reduced to writing at the time by Mrs. Dickenson, in presence *238of Mrs. Dickenson’s sister, Drnzilla Camp. I was present, also. Theresa Carey signed this writing. After Mrs. Dickenson was done writing, and before Theresa signed it, she read it over to her. kShe said it was all right, and then she signed it. She signed it with her mark.”

On cross-examination she said:

“I was born the 6th of November, 1848. This writing was made the 28th of February, 1858. I think it was. I have not seen the writing since. I could not at that time write much, and could not read it very well. I can’t tell the size of the paper. It was note or letter paper, just as you have a mind to call it. I would not swear to Mrs. Dickenson’s handwriting if I should see it, although I think I would know it. This writing was *on*both sides of the sheet, I think. I havé not seen a copy of it, but heard part of it read in court. I was present part of the time in court during the former trial. Renslaer Carey was at home when the writing was made. He was in the house. I would not say that he was in the room. Theresa gave directions to Mrs. Dickenson. Renslaer was not by at the time.....I was in the room while she was writing most of the time. ... I was in the room when the paper was read. I don’t know that I was called in, but I was in the room with Caroline when she read it. Theresa was lying in bed. She was lying in bed when she signed it.....Theresa said it was all right when the paper was read over to her. Theresa did not read it over herself. I know she did not. I think Theresa could write. There was no reason given why she did not write her name. She requested that Mrs. Dickenson should write her name. I heard that. I next heard of this paper, after it was .executed, a year ago last fall..... I did not know at the time that it was a will. I did not know at the time that such a writing was called a will. I had always heard it called a *‘*dying request.’ That was what Aunt Caroline called it.”

The defendant gave evidence, by a number of witnesses, that the witnesses for plaintiff had made statements in relation to the execution of the will, and other matters connected with the case, in conflict with their testimony on this trial, and generally in answer to plaintiff’s case.

The Court, in the charge, recapitulated the evidence, stated the law, and said further:

“ .... If you find that the paper dated February 28th, 1858, was signed by Theresa Carey in the presence of Caroline Dickenson and Delilah Custard, after having been read to Mrs. Carey in their presence, and assented to by her as being as she wanted her property to go, and if the instru*239ment when signed was in its present condition as to erasures ; and if they further find that Delilah Carey, now Delilah Custard, was, at the time, possessed of sufficient intelligence to know and understand that a will or other paper disposing of property was being .executed, and did know and understand what was being done, and was capable of remembering and detailing the substantial circumstances occurring at the time, then the execution was in compliance with the law, and the instrument should be established as a will. But if Delilah Carey*, now Delilah Custard, had not such intelligent knowledge and understanding, or if she did not see Theresa Carey make her mark, she being present, to the knowledge of Mrs. Carey, then the execution of the paper was not in accordance with the requirements of the statute. Delilah Custard would not, in that case, be considered as one witness such as the law requires.....

.“ The case is submitted to you, and commended to your careful consideration. Ascerthin from the evidence the facts and render your verdict accordingly. If you find that the will was executed, as it appears, in the presence of two witnesses, as required by law, your verdict should be for the plaintiff — otherwise for the defendant.”

The verdict was for the defendant.

The plaintiff took a writ of error. His first assignment of error was refusing to allow the plaintiff to testify.

*M. Smith*and *W. M. J. W*Piatt, for plaintiff in error.

The plaintiff was a witness by virtue of the act of April 15th, 1869: Pamph. L., 30, 1 Br. Purdon, 624, pl. 16, etc. The provisions of this act should be carried out in good faith: McClelland *v.*West, 20 P. F. Smith, 187. A strained construction should not be put on a statute: 1 Redfield on Wills, 237. One is not a witness until called to testify: 1 Redfield on Wills, 227, Section 27 ; Harding *v.*Harding, 6 Harris, 342.

*P. M. -Osterhout*and *P. P.*Little, for defendant in error,

cited Wills, act April 8th, 1833, section 6, Pamph. L., 249 ; 2 Br. Purdon, 1474, pl. 6. The instrument must be judged by the law as it was at its execution: Mullen *v.*McKelvy, 5 Watts, 399. The act of 1869 cannot have a retroactive effect: Greenough *v.*Greenough, 1 Jones, 489; Shinkle *v.*Crock, 5 Harris, 159; Snyder *v.*Bull, Id., 58 ; McCarty *v.*Hoffman, 11 Id., 507 ; Alter’s Appeal, 17 P. F. Smith, 341. As to the effect of 7th section of Married Woman’s Act, April 11th, 1848: Pamph. L., 536; 2 Br. Purdon, 1016, pl. 14; they cited Fransen’s Will, 2 Casey, 205 ; the will of a married woman must be published and declared by her to be *240her will in the *presence*of two or more witnesses, who must then be competent witnesses; Miller *v.*Carothers, 6 S. &. E., 222; Harding *v.*Harding, 6 Harris , 342; 1 Redfield on Wills, 254, sections 5, 6 ; 2 Greenleaf on Ev., section 691. If the instrument was not a will at the testator’s death it cannot bo made so by subsequent legislation: Greenough *v.*Greenough, 1 Jones, 494; Hale *v.*Medcalf, 9 Barr, 108; Norman *v.*Heist, 5 *W.*& S., 171; Bolton *v.*Johns, 5 Barr, 145 ; Shinkle *v.*Crock, 5 Harris, 159 ; McCarty *v.*Hoffman, 11 Id., 507 ; Alter’s Appeal, 17 P. F. Smith, 341.

Mr. Justice Williams

delivered the opinion, May 23d, 1875. This was an issue directed to the Common Pleas of *Wyoming County,*for the purpose of ascertaining whether the paper, admitted, to probate by the register, was the last will and testament of Theresa Carey. It is dated February 28th, 1858, and signed “ Tereisse M Carey”- — a mark or cross being inserted between the Christian and surname. There are no subscribing witnesses to the paper, and there is nothing on its face purporting to show that the mark or cross was made by the testatrix, and intended as her signature. She was a married woman, and died the next day after the date of the will, leaving her husband surviving. The will ivas admitted to probate October 13th, 1871, and, on the trial of the issue, the jury found against its validity and judgment was entered on the verdict in favor of the defendant. The plaintiff is the principal devisee, and the question presented by the record is, was she a competent witness to prove the execution and validity of the will ? It is admitted that as the law stood before the passage of the act of 15th April, 1869, allowing parties in interest to be witnesses, the plaintiff was not a competent witness to prove the will. But it is contended she was made competent by that act, and, under its provisions, her testimony ought to have been received. It ivas decided in Bowen *v.*Goranflo, 23 P. F. Smith, 357, that in an issue, *devisavü vel non,*a devisee is a competent witness in support of the will. But the will in that case was made after the passage of the act, and was, thérefore, subject to its provisions as to the competency of the witnesses by whom proof of its execution might be made. But a different question is presented here. The will in this case was made and consummated by the death of the testatrix long before the act was passed, and unless it is to have a retroactive effect, is not subject to its provisions. But it can have no retroactive force if it would give testamentary effect to a paper which had not been so executed as to be a valid will: Alter’s Appeal, 17 P. F. Smith, 341. It is well settled that the exe*241cution of a will must be judged of by the law as it stood at the time of its execution: Mullen *v.*McKelvy, 5 W., 399; Kurtz *v.*Saylor, 8 Harris, 205 ; Jack *v.*Schoenberger, 10 Id., 416 ; Gable’s Executors *v.*Daub, 4 Wr., 217. In the case last cited it was said that the execution of the will must be established by the evidence required by the law as it was when it was executed, and not as it was at the death of the testator. Was the plaintiff' then a competent witness to prove the execution of the will ? The act of 8th April, 1833, section 6, provides that “ every will shall be in writing, . . . and in all eases shall be proved by the oaths or affirmations of two or more competent witnesses, otherwise it shall be of no effect.” The act of 11th April, 1848, section 7, deglares that “ any married woman may dispose, hy her last will and testament, of her separate property.....Provided, that the said last will and testament be executed in the presence of two or more witnesses, neither of whom shall be her husband.” It is a necessary intendment of the proviso, that the witnesses, in whose presence the will is executed, shall be competent witnesses. No others would be capable of proving the will. If the persons, in whose presence the will is executed, are not competent to prove its execution, they are not witnesses within the meaning of the act. It is not enough that the execution of a married woman’s will shall be proved by competent witnesses, as in the case of the will of a person *sui*juris, but it is essential to its validity that it should be executed in the presence of competent witnesses. If it is not, it can have no testamentary force or effect whatever. To exe.cute a will according to the proviso, as said by Woodward, J., in Fransen’s Will, 2 Casey, 205, is to sign it, or request another to sign it, in the presence of two or more witnesses, and to publish and declare it in their presence to be the last will and testament of the party whose signature has been placed to it. Nothing less than this can be execution of a will by a married woman. If then the will of Theresa Carey wrns not executed in the presence of competent witnesses, it was no will, and her property descended at her death to her husband and heirs at law. It was not in the power of the legislature to divest their title by a subsequent act, whether in the form of a general or special enactment: Greenough *v.*Greenough, 1 Jones, 489 ; Shinkle *v.*Crock, 5 Harris, 159 ; McCarty *v.*Hoffman, 11 Id., 507 ; Alter’s Appeal, 17 P. F. Smith, 341. But the act allowing parties in interest to be witnesses was not designed to have any such effect. In declaring that “ no interest nor policy of law shall exclude a party or person from being a witness in any civil proceeding,” the legislature did not intend to disturb or impair *242vested rights, or to make that a will which, at the date of its execution, was no will. If the act intended to remove the disability of a witness arising from interest, it did not intend to set aside or repeal the well-settled rule that the execution of a will is to .be judged of by the law as it stood at the time of its execution, and is to be established by the evidence that the law then required. 'If so, the plaintiff was not a competent witness, and the fact that the will was executed in her presence, if proved, would have no bearing or effect on the question of its validity. Why, then, should she be allowed to prove it ? If the will was not valid when executed, it could not be made valid by any subsequent act of legislation.

But it is insisted that if the plaintiff was not a competent witness to prove the will, her testimony was admissible as corroborative evidence of its execution. Undoubtedly a witness may be competent for one purpose, and not for another, and testimony may be admissible as corroborative, which would not be received as direct or primary evidence of the fact in issue. But the plaintiff was not offered to prove some fact or circumstance tending to corroborate the evidence already given in support of the will, but to prove the execution of the paper by the testatrix as her will, its identity, and all the circumstances under which it was made. If the offer was admissible for any purpose, it was admissible as direct evidence of the execution of the will. This is the purpose for which it was offered, and if ifc was not admissible for this purpose, it was not admissible for any purpose. If all the facts set out in the offer had been proved by two competent and credible witnesses, there would have been plenary proof of the due execution of the will. If the plaintiff’s testimony was only admissible as corroborative, and not as direct, and primary evidence, then, if it had been received, there would have been no sufficient evidence of the execution of the will — as there clearly was not- — to allow the question to go to the jury. There was but one witness, Caroline Dickenson, by whom the will was written, who testified to all the facts necessary to constitute full proof of its execution. Delilah Custard, the only other witness present at the execution of the will, then a child but little over nine years of age, does not identify the paper. ItVas not shown to her when her deposition was taken, and she had not seen it since it was executed, more than fourteen years before. On her cross-examination she said: I was born the 6th of November, 1848. This writing was made the 28th of February, 1858. I thinlc it was. I have not seen the writing since. I could not at that time write much, and could not read it very well. I can’t tell the size of the *243paper. I-t was note or letter paper, just as you have a mind to call it. . . . This writing was on both sides of the sheet, I think. I have not seen a copy of it, but have heard part of it read in court. I was present part of the time in court during the former trial. It is clear that Delilah Custard was not a complete and sufficient witness to establish the will. There is nothing in her testimony which shows that the paper admitted to probate as the will of Theresa Carey, on the 13th of October, 1871, was the paper which she saw the testatrix sign with a mark on the 28th of February, 1858. Even then, if the offer was admissible as corroborative evidence, its rejection did the plaintiff no harm; but it was not admissible for any purpose.' To prevent undue influence, imposition, and fraud, the'will'of a married woman should be executed in the presence of witnesses, whose only interest is to see that it is her will, and that its execution is her voluntary and deliberate act. It may well be doubted whether a child under ten years of age is a competent witness under the act. What security or protection can'there be against undue influence and fraud, if the will of a married woman -may be executed in the presence and proved by the testimony of children of such tender years 7 But this question is not presented by the record. All that we decide is, that a devisee is not a competent witness to prove the execution of a married woman’s will, made before the passage of the act allowing parties in interest to be witnesses. The act was not intended to affect the competency of witnesses by whom such a will may be proved, because its execution is to be established by such evidence as the law required when it was executed.

Judgment affirmed.