#### Allison’s executors v. Allison.

From Orange.

A. executed a paper writing in the form of a deed of trust, and after-wards on the same day made his will referring to the former paper, the purpose of which was a distribution of his estate after death. IX Y. was one of the trustees named in the deed, and also one of the executors named in the will, and one of the Only two subscribing .witnesses to both papers. The trustees were directed by the first instrument to retain out of the funds a compensation for their trouble. The testator had both real and personal property, which his trustees and executors were directed to sell. After the death of A.

1). Y. released all his claim to the other trustees.

Whether the two papers are to be considered as one testamentary disposition— *Quere?*

Tlte will is not well executed. D. Y. had such an interest in the lands devised as was contemplated by the act of 1784, and when 3uch interest exists at the time of attestation, no subsequent release will avail.

*John .u.lison,*on the first (lay of May» 1821, executed a paper writing in the presence of *David Yarbrough*and *William Horton,*subscribing witnesses thereto, with tiie solemnities required by law in a will to pass real estate: this writing was in the following words, viz:

“ Know all men by these presents, that on the first day of May, in the year of our Lord one thousand eight hundred and twenty-one, Í, *John Mlison,*of the town of Hills-borough, county of Orange, and state of North-Carolina, of the one part, *Frederick Nash, Mnier B. Bruce*and *David Yarbrough,*of the town, county and state aforesaid, and *William, Shaw,*of the county of Wake and city of Raleigh, of the other part, witnesseth, that for and in consideration of the natural love and affection which he the said *John*Mlison, hath and beareth to his friends and relations in North Britain, in the shire of Renfrue, and to the intent to make some provision for their maintainance and advancement in the world, and for settling and assuring the premises herein after mentioned, and for other *142good causes and considerations me hereunto moving, 1, the said *John Mlison,*from a full confidence I have in the honor, honesty and integrity of them the said *Frederick Nash, Mner B. Bruce, David Yarbrough*and *William Shaw*as aforesaid, and for the consideration of tiie sum of five shillings to me in hand paid by them tiie said *Frederick Nash, Mner B. Bruce, David Yarbrough*and *William Shaw*as aforesaid; that is to say in trust tiie following property, to wit: my corner house now occupied by *John Van Hook <§• Co.*also my new house lately occupied by *William Huntington*<$• *Co.*both being on part of lot No. 6. in the town of Hillsborough, be sold, seperate or together as may best suit the purchaser and enhance the price; also all my stock I now have and possess in the State Bank of North-Carolina at Raleigh, that is to say, if I do not sell said stock before my decease, consisting of twenty shares amounting to two thousand dollars, together with all the profits or emoluments that may be due thereon; I tiie said *John*Mlison, do hereby assign over and convey to them, my trustees, for the following purposes herein after mentioned, to wit: that immediately after my decease, or as soon after as may be found convenient, I, the said *John Mlison,*do hereby authorize my trustees aforesaid to sell my bank stock as aforesaid for tiie best price that can be got for it, and convey or transfer the same to tiie purchaser or purchasers thereof and to their heirs and assigns forever, and to do and transact all matters and things touching and concerning the premises agreeably to the laws and regulations tiiat now are, or may hereafter be established or required by the directors of said bank touching and concerning thepre-inises, in trust and confidence that immediately after my decease, or as soon afterwards as may be found convenient, they the said trustees aforesaid are hereby required, empowered and authorized to sell the corner house now occupied by *John Van Hook 8f Co.*also my new house lately Occupied by *William Huntington Sf Co.*with the appen*143dages thereunto belonging, described' as aforesaid, for the best price that may be got for them, and to convey to the purchaser or purchasers thereof, their heirs and assigns forever, as fully to all intents and purposes as I myself might or could do were I living; provided always, that as soon as the money is received arising from the sale, of my stock I have in the State Bank, so soon as the money shall be collected, shall be remitted by bills of exchange or otherwise as my trustees may deem proper for the safe conveyance, and the bills to be drawn in favour of and made payable to *James*Craig, Junior, manufacturer, in the town of Paisley, shire of Renfrue, North Britain: and farther, iny trustees are hereby required and directed that out of the monies arising from the sale of my houses and lots as aforesaid, two hundred and fifty dollars be paid to ray nephew *James Allison,*and one hundred dollars to *Abner B. Bruce*for the purposes mentioned' in my will; and fifty dollars to *Mary Allison,*mother of *James Allison,*of the state of Delaware, (if living at my death;) and my said trustees are hereby directed that all the debts due to the said *John Allison*at his decease, either by note, bond, house rent, money on hand or otherwise, they my said trustees are hereby impowered to collect, sue for, and receive the same into their own hands, and also be placed with the money arising from the sale of my lots and houses and bank stock, and the balance of what may remain in their hands, after what I have hereby enjoined on them to perform, I do hereby require and direct to-be remitted to the said *James Craig,*junior, manufacturer, in the town of Paisley, North Britain, shire of Renfrue; and the said trustees are hereby authorized and directed to retain to fheir own use out of the monies, that may come to fheir hands, a sufficient compensation for their trouble in performing and executing the trust hereby reposed in them, and also for discharging any debt that may arise from a sick or death bed, and phy - sician's aid if required, and funeral charges, &c. And I *144do hereby request of' my trustees, that nothing but a pi aim atul decent interment, no funeral service shall be per* . ’ „ I , . 1 formed at my interment, but what a Gospel Minister or prívale Christian may think fit and appropriate for such a solemn occasion. And this deed of trust shall not affect my last will and testament in favour of my nephew *Jame»*Mlison.

I hereby request Mr. *William Shaw,*of Raleigh, who I have appointed one of my trustees, that immediately after my decease, or as soon after as he mjay find it convenient, to write to Mr. *James Craig,*acquainting him of my decease; and I do direct that neither my stock, nor my houses and lots in Hillsborough, shall be sold until an answer be received from him. And in case of the death, inability or removal of any of the trustees hereby nominated and appointed by me to act in this behalf, then and in that case, the surviving and acting trustees are hereby required and directed to choose another or others in tlieir stead; and shall have full power-from time to time to act accordingly as the case may require. And it is hereby required by him the said *John Mlison,*that this deed of trust he put on record as soon as practicable after my decease. In testimony whereof, I the said *John Mlison,*do hereunto set my hand and affix my seal, the day and year first above written.”

Afterwards,-on the same day, *John Mlison*executed another paper writing in the presence of the same subscribing witnesses, with the solemnities required by law in a will to pass real estate, and in it referred to the former writing: this last writing was in these words:

“In the name of God! Amen. -I *John*Mlison, of the town of Hillsborough, county of Orange and state of North-Carolina, being well advanced in years and very infirm, but of sound disposing mind and memory, and calling to mind the mortality of my body, do make, ordain and publish this my last will and testament in man* rrer and form following, to wit, after all my just debts *145and funeral charges are paid by my trustees appointed for that and other purposes, I give, devise and bequeath to my nephew *James Allison*all the personal property I may be possessed of at the time of my death not otherwise disposed of, in addition to the sum of two hundred and fifty dollars to be paid to him by my trustees, to him, his heirs and assigns for ever, except my stock in the State Bank at Raleigh, consisting of two thousand dollars, and the dividends that are or may become due thereon, also excepting my house rents and debts of every description which I have made over to certain trustees for other purposes, which will more fully appear by reference to the deed of trust bearing even date herewith, and excepting also my negro woman slave named Ann, which for divers causes and considerations me hereunto moving and meritorious services rendered to me by her in time of sickness, I do hereby will, devise and bequeath my said negro woman slave Ann to *Abner B. Bruce,*with this condition, that she be not sold or given away to any other person except it be with her consent; but that the said *Abner B. Brace*support her with food and clothing suitable to her station; and I do hereby give, devise and bequeath to the said *Abner B. Bruce*the sum of one hundred dollars, which sum I hereby direct my said trustees to pay to him for the support of my said negro woman Ann when she may, through old age or infirmities, become unable to perform the duties of a. slave and servant; and should my said negro woman die, or be dead before or after my decease, the said sum of one hundred dollars notwithstanding is to be paid to the said *Abner B. Bruce*as a legacy out of the real property I have made over to my trustees and directed to be paid to him by them.

All my just debts, if any be due and owing to any per? son or persons whatever after my decease, I hereby direct to be paid by my trustees nominated for that and other purposes, wlio are also authorized to collect all *146debts due and owing to me, whether due by bond, note, account, or in any other manner on what account soever,

It is hereby declared to be understood, and my will an<* lntcnt'on's' that my nephew *James Mlison*shall ’nave no claim right or title whatever to any bonds, notes, debts, dues or accounts that may be due or owing to me on any account whatever at my decease. I the said *John Mlison,*do hereby nominate, constitute and appoint my friends *David Yarbrough*and *Thomas Clancy,*esquires, executors to this my last will and testament, hereby revoking, annulling and disallowing all former wills and bequests by me heretofore made, hereby allowing, ratifying and confirming this only to be my last will and testament. In testimony whereof, I the said *John Mlison do*hereby pronounce, publish and declare, in the presence of God as my witness, and by my well known signature written with my own hand and seal thereto affixed, this first day of May, in the year of our Lord one thousand eight hundred and twenty-one.”

*John Mlison*died without revoking or altering the foregoing writings, and they were offered for probate as containing one testamentary disposition of the estate of *John 'Mlison;*prior to which, *David Yarbrough,*the subscribing witness, who is the saíne *person*mentioned by that name as a trustee in the paper writing first set forth, by deed, fully released to the other trustees all the interest which he had under the writings, and was admitted as a witness, though objected to.

The probate was opposed, and on an issue submitted to a. jury, they found that the two papers above set forth were the last will and testament of *John Mlison,*subject to the opinion of the Court upon the foregoing facts; and it was submitted to the Court to say, whether the two paper writings together constitute one testamentary disposition or will.

The Court (Paxton, judge,) held, that the paper writing constituted one will, and rendered judgment accordingly, from which an appeal was taken to this Court.

*147*Sea-well,*for the appellant. —

The questions which appear to present themselves in this case, are two. First, whether the paper writing in the form of a deed be testamentary? Secondly, if it is testamentary, whether it was executed in such manner as to he sufficient to pass real estate under the act of 1784?

I shall examine the last point first; and this leads to the consideration of the admissibility of *Yarbrough,*the subscribing witness. I contend, that he was interested at the time of his attestation, and that this interest has not been removed by the release. The *amount*or *quantum*of interest to disqualify a witness, is of no importance; for it has been wisely said, the law can form no scale for the .temptation of man. In the present case, the deed, as I call it, conveys to the trustees, of which the witness is one, the fee simple in the real estate, for they are directed to convey to the purchaser in fee. It grants all the bank stock, which they are directed to sell; and all the debts they are„directed to collect; and out of the monies raised.Xrom *all*these sources, they are directed to retain a just compensation for their trouble. It is the same, therefore, in effect, as if a certain portion of the real and personal estate had been conveyed to them. This interest passes with the estate, which may be greater or less according to future events. The fee simple passes in trust; the trust is to sell t-lie estate upon the happening of a certain event; and then to retain out of the trust fund a compensation for services in performance of the trust. The quantum of compensation is to depend upon the quantum of service; the right to retain does not arise till the services are performed. The release as to this right of compensation cannot operate to extinguish the right, when made to the other trustees, because the claim to compensation is not *against*them, it is personal in its nature, and when performed is to be *retained*by the trustee; the trustee is to perform the service and pay himself. But this payment or retainer cannot be said to be adverse fo *148the rights of the co-trustees; and if it was adverse, as the right to retain was only to arise when the services were performed, the release could work no extinguishment un- ^ ^'6 event happened. It would therefore seem to me that a release to *John Doe,*or to the deceased bargainor, Would have been just as effectual,

But, possibly, it may be contended, that the release is of all the *estate*which the witness took. Then I answer, they were tenants in common by our act of'assembly, and that being tenants in common, the release cannot operate. Again, if the release *could*Operate to convey the estate, yet until registered it remains inefficient. And it cannot pass as a bargain and sale, for the same reason; to which may he added another, that there is no consideration. In whatever light, therefore, this question is examined, it appears to me that the witness was more than a *naked*trustee; that he was interested at the time of liis attestation, and that his interest has not been removed by this release. But whether the release does or does not extinguish the interest, I contend, that being interested when h$ subscribed his name in the presence of the testator, (if the paper is to be considered as a will,) that under our act of assembly, it is void as to the real estate. This act declares, that no will or testament shall be available to pass lands, &c. unless subscribed by two witnesses, no one of which shall be «interested” in the said devise. And if it were asked, of a plain man whether a will would be available to pass lands, which was' subscribed by two witnesses only, one of whom was the de-visee, where the act of assembly had required that the witnesses should not be interested, he would be very apt to say, that the devisee was interested at the time he subscribed, and as the act declares that there shall be two witnesses, no one of which shall be interested in the devise, the question itself contains its own solution. And it certainly does, if we regard the enacting words used by the legislature, and their' reasons as assigned for using *149’them. The preamble is, to protect persons “ weak ir.ba-dy and mind, from the undue *influence*of those *about*them;” and who so likely to attempt this influence as the person intended to be benefited by the will written? And though in a strictly *legal*sense, a will being ambulatory conveys no interest, because it has no effect till the death of the testator, yet can the intention of the law makers be doubted for a single moment? They were pointing out -a character, or description of persons, who were to be excluded from attesting the will; they are *described*as interested, "because the devise purports to give an interest to them; and the character of *interest,*being confined hy the legislature to the time of their subscribing in testator’s presence, who must then be alive, shows what they meant by a witness interested in the devise, and is tantamount to *devisee.*Acts of the legislature are passed for-laying down rules for the mass of mankind; they ought to be, and are construed liberally, and in the most popular sense. It would not have been necessary to have declared that the will should be proven by witnesses not interested at the time they gave their testimony; this was-, already provided for by the rules ot all evidence; to suppose they were providing against evidence is to suppose they meant nothing. *Ii,*therefore, these words in the act and their motives as assigned, are to be regarded in ascertaining their design, it would seem impossible to doubt upon the question. And what are the historical facts in support of this intention? Some time previous to the year 17"52, by.two decisions in the Court of King’s Bench, *Billiard*v. *Jennings, (Com. JRep.*90. 94.) and also to be found in Ld. *Tlaym.*and *Carthew;*and *Jlnstey*v. Bowsing» (2 *Stra.*1253.) it was solemnly determined under the stat. of frauds, which requires wills to be attested by three *credible*-Witnesses, that a devisee or legatee was not a *ere-' dible*witness; and in the latter case, it was held that the tender of the legacy did not remove the objection, and the Chief. Justice, Zee, in delivering thé judgment of the *150Court, states, that *“*it was objected nothing vests till tile death of the devisor; and, therefore, at the time of the attestation the witness had no interest; but the answer is, that he was then under a temptation to commit a fraud, and *that is what the*parliament intended to guard against.” And again, the same Judge adds, that “the true time for his credibility is the timo of his attestation, otherwise a subsequent infamy which the testator knows nothing of would avoid the will.” The whole Court, in both cases, determining the wills to be void. After the determination of these cases, the parliament, in the 25 *Geo.*2. about the year 1750, from “an alarm taken by the .practitioners” as Mr. *Powell*calls it in his treatise on *Devises,*121. when the true principles of the statute came to be thoroughly discussed, passed an act. by which the devise to the witness is declared to be void, and lie rendered competent, to meet the case determined by 14. *Holt,*in *Corny ns;*and the payment or tender of the legacy, or release to the witness, is declared to render him •competent, to meet the case determined by Lord Chief Justice *Lee,*in *Strange;*with another provision, as to creditors being witnesses, where the real estate was charged with their debts. By the peculiar phraseology of this last mentioned section, the act was held to extend only to those who were *immediately*interested, and not to embrace such as had a mere *consequential*interest; and af-terwards two other cases, of equal celebrity, came be-' fore the Courts; the one before the Court of King’s Bench, *Wyndham*v. *Cheiwynd,*(1 *Burr.*414. 28 *Geo.*2.) the other before Lord *Camden,*in the Common Pleas, *Hins-don*v. *Kersey.*The case before Lord *Mansfield*was determined in 1757; the case before Lord *Camden*has not been reported, though an abstract of it is to be found in *Powell Dev.*131. but as that contains no date, we are somewhat in the dark as to the precise time it was determined, though it seems to have been after the case in *Bur-rfow;*but it is sufficient to state, that the question was pre¿ *151sented in both cases, whether a person, on Whom the will conferred a benefit, was *interested*by the devise and was a credible witness? These cases, both of them of the deepest interest to landed property, and happening immediately before the revolution, and in which Lord *Mansfield*and Lord *Camden*maintained different sides of the question, ’the former that the credibility applied only -where the witness came forward to testify; the latter that it meant competency, and related to his attestation; independently of the known preference felt by the American people for Lord *Camden,*can leave, but little doubt on the mind, that when the act of 1784 was passed, the legislature of this state must have had in view this rule, laid dow'n by Lord *Mansfield,*and intended to have conformed as near as possible to the opinion entertained by Lord *Camden.*Indeed, the determination of the King’s Bench, in the case of *Wyndham*v. *Chetwyiid,*may be admitted and supported as coming within the statute of *Geo.;*for. that was a case where *creditors*whose debts were charged upon the real estate were the witnesses; and Mr. *Powell,*in his treatise upon *Devises*130. observes, that it does *“*not seem to want the aid of any particular arguments to support it, since, upon the general circumstances of the case, it falls-within the latter provisions.of the stat. of *Geo.*as to creditors being witnesses, whose debts are charged on lands or hereditaments.’-’ But the reasons upon which the opinion of the Court is grounded in the case of *Wyndham*v. *Chetwynd,*go a great way in supporting the opposition taken in this case. Lord *Mansfield*says, (1 *Burr.*417.) “the question does not depend upon the construction of any particular words of thé statute. The statute is silent as to tlie *capacity*of the witnesses, it requires no qualification;’’ that the thet *credible,*• * is never used as synonymous to *competent*when applied to testimony, it presupposes the evidence *given;*and that the statute, by not declaring who *are*or . are *not*credible, leaves the question just as it was; and *152that, therefore, according to general principles of law, ^ie <luestion will be, not as to his competency at the time of *knowing the fact*he came to testify, but only, whether l|e was competent at the time of his *examination.*How different is the act of 1784? The question of who are competent witnesses is not left upon general principles; there ‘is a *positive*incapacity created, which, from the very nature of the thing, must be referrable to the time of attestation. Tiie will is declared to be unavailable, cither in law or equity, to pass lands, unless subscribed in the presence of the testator by two witnesses at least, no one. of which shall be interested in the devise of said lands. The *devise,*therefore, of the lands is void, unless the will was subscribed by two witnesses who had no interest in the devise. It is the *Jdnd*of witness to be. selected which the statute is aiming at, so as to prevent as far as possible the chance of bargaining; for under every circumstance which can attend a transaction, a witness always will appear in an awkward light, who renounces a bene-, fit to become a witness; and the contrivance by which he can be indemnified is so easy, that, generally, he is to be. considered as *hired*to give testimony, and though be *may*speak the truth, yet is he generally *suspected.*The act of 1784, therefore, not depending upon whether the witnesses be *credible,*nor whether they be competent upon general principles, but requiring that they should not *be--interested*in the devise; I take it that, as one of the devi-sees is one of the two subscribing witnesses, the will is consequently informal, and void as to the real estafe;.and the condition of the devise is not altered by the release of the witness; for unless *executed*in the manner pointed out by the act, that is, *subscribed*by two witnesses, no one of which is interested in the same, it is void. And if I am correct in this view of this question, it puts an end to the case; but if mistaken, it then becomes necessary to examine the remaining point, and that is, whether this paper |ie testamentary. I will not disguise my own conviction, *153feat, according to some *cases*and *dicta*in the books, this is by far the most difficult undertaking; whilst on the other hand, if we are to examine it upon *principle,*nothing seems more attainable. The *character*which every act of an individual acquires, depends upon *the intention;*and though it may frequently happen, that by mistake, one thing is done for another; yet that which is mistar kenly done, if the mistake can be made appear, is never in law attributed to the party as his legal act. And hence it may be fairly admitted, that if a party *intend to make a will,*and by mistake executes it in the form of a deed, or *vice versa,*the *quo animo*shall characterize the act, and it shall be considered a will, or a deed, according to his intention. If this principle be correct, let this case be examined by it; and here, let it be asked, whether, at the time these two papers were executed, it was the intention of *Allison*to sign and execute two wills? or did he then contemplate that *both*these papers were to be ambulatory and imperfect until his death, and alike subject to his alteration and control? It will not do to say, that the instrument shall be a deed, or will, according to the *office*or purpose it is to perform; and that if it relates to managing his affairs after his death, it shall be a will; for that would prove too much: it would convert all estates upon trust, which were informal, into wills; it would convert those numerous cases of gifts by parents to children, after a reservation of a life estate, into wills; in fact, it would be the philosopher’s stone, converting every thing which *could*be done by will, into a will, where the thing was attempted, but unskilfully done by deed. The true inquiry, therefore, must ever be, what does it *appear*the party intended to do? to *bind*himself, or to make a *will revocable*at pleasure? The whole difficulty has arisen from a want of legal knowledge when these papers were executed. *Allison*was probably a foreigner, as it appears by the deed the principal objects of his bounty resided in Scotland; he was, no doubt, aware, from *154the decisions made in this state, that a devise to aliens would be void; and not having the benefit of legal advice, it occurred to him to *deed away,*as it is commonly called, his real estate, debts and bank stock, in trust for his friends in Scotland; and to make his will, for the residue of his personal estate. His idea was, no doubt, that by this deed he Gould limit and control the estate embraced in it in any manner he thought proper; and as he seems, by the last clause, to require it to be put upon record after his death, the probability and fair inference is, that he retained the possession of it, and it is expressly declared in the deed that it is not to affect his last will and testament. From all which it seems to me evident, that he intended to make a *deed,*and *not*a will, at the time he executed it; wherefore, I should conclude, that this *Court*must make it his will, if it is to have that character. Cases can be adduced where papers, in the form of indentures, have been considered wills, which no doubt, from the research of counsel on the other side, will be adverted to. I will notice some of them, and they appear quite distinguishable from the present case. A noted one is to be found in 2 *Vea. Jnn.*204. *Sabergham*v. *Vincent.*That was where a testator made his will, and devised his real estate, with various limitations over, *subject*to such ¡“charges, provisoes and conditions as he should by any deed or instrument in writing, to be executed by him and attested by two or more credible witnesses, direct, limit or appoint, and to no other purpose.” Afterwards the testator, by a writing every way in the form of a deed, and reciting his will, and that he had reserved a power to himself of farther disposing of his property, proceeded thus, “ know ye, that by this my *deed poll,*I do direct and appoint that my trustees (naming them) shall immediately after my death, &c.” Now it is evident that thfe testator here intended to engraft some after-made provision into this will, at the time it was made, which, when done, being in its nature testamentary, *only*to have *155effect after his death, might be considered *quoad hoc,*as intending to incorporate this paper in his will. This case came on first before Lord *Tlmrlow,*and he sent the.question to the Court of King’s Bench, whether this lastpa-per should unite with the will? and that Court, with Lord *Kenyon*at its head, determined unanimously, that it could not, being a *deed,*and certified accordingly. (5 *Term*JR. 92.) It is true, however, that after Lord *Tlmrlow*left the Court of Chancery, and was succeeded by Lord *Lough-borough,*the case again came on, when the new chancellor, after retracting and changing his opinion several times, called in Mr. *Butter,*who had decided upon it in the King’s Bench, and Mr. Justice Wilson,• and after an elaborate argument of council, *they determined the*latter paper to be testamentary. And it is also true, that it is said by the chancellor that the case was not full enough when sent to law, though Mr. *Butter,*who seemed somewhat puzzled to account for the decision without relying upon the reason furnished by the chancellor, and which is evidently without foundation, frankly confesses that the cases *“*did not occur” to him. What does Lord *Kenyon*say upon this case? He says, that “the latter paper is a *deed,*and *not*a will; it was called a deed by the party himself; it is stamped, and has all the semblance of a deed. Then supposing this to be a deed, there is no case in which it was ever decided that a series of limitations, in part created in one conveyance, and part in another, can be consolidated.” What does Mr. *Butter*say? He very properly remarks, «the only question is, whether the paper of the 6th of October be a deed, or part of a will? If the former, consider whether the will had or had not any effect at that time. The will was dated on the 5th, the deed on the 6th;- the will could have no effect when it was made, nor could it till the death of devisor;” and Grose declared himself of the same opinion. To say the most of this case, here is the Court of King’s Bench, the proper forum to determine the question, against the Chan - *156cellor and two Judges; and in the case presented to th> King’s Bench, all the facts attending the.execution of ° , . . , deed poll are stated, and m the *questions*the papers are Cftlled “instruments,” so as to leave the Court of Law fully at liberty to characterize them; and that the Court did so, cannot be doubted from Lord *Kenyon’s*opinion. Another is *Hickson*v. *Wyiham,*to be found stated in *Powell on Devises,*13. That was in the form of an indenture with a consideration of *5l.;*but tiie latter part of the paper changed its form, and several legacies are bequeathed, then executors are appointed, and lastly, it was signed, sealed and published, *and delivered as his last will,*in presence of two witnesses. Another case, stated in the same book, 14. *Green*v. *Proud,*which might seem *to*go a greater length, but which, when examined, is still determinable by the same rule, that of *intention.*There the paper was in the form of articles of agreement, and was delivered as the *act and deed;*but it appearing that *directions*had been given to make a *will,*and a person *sent for to that end,*it was held to be a good will. But the case before the Court cannot be considered a will or a testamentary paper, in its design, without involving the grossest absurdity. For if it was intended by the testator, why not incorporate it into the will which he then professedly' made? lie seems to have been well apprised of the two conveyances. In his will he mentions his trust deed, and in the deed he mentions his will; both of which are referred to as of the same date. To suppose, then, that when he, in substance, declares that he will not dispose of his real estate by will, but by deed, and executes at the same time two papers, the one a will, which he calls so, and the other a deed, which he calls a deed, and that he nevertheless intended two wills, is at once to suppose him too great a fool to be capable of making any disposition of his property either by will or deed. Upon the whole, the case admits of this easy solution: for some reasons the testator took upon himself to dispose of his estáte, partly *157"by will, and partly by deed, but in regard to the *capacity*of a deed to carry into effect his wishes, he happens to be mistaken,* and the quicksand to be guarded against, is an. inclination to effect his intention as gathered from the deed, at the expense of the law. To carry into effect the wishes and designs of every man, where they were intended for benevolent purposes, must be a pleasant office to every Judge. It calls into action the noblest qualities of the heart, and we strive to see things against the conviction of our own senses. The injurious influence of these feelings has often been felt, where departures from a known rule, for the sake of justice, have become so various as to destroy all rule. The rules of law are the rules of property, and the less they savour of construction, the more wholesome in their operation. Where the law has given a definite signification to certain terms of art, they are, when used, to be received in that sense, unless it shall appear they were used through mistake. A will is a term of art; and so is a deed. They are both convey* anees known to the law, and are governed by distinct and Separate rules. The difficulty oftcn-occurs in determining the nature of the conveyance, and in law as in physic mach mischief may happen in mistaking the case. If *Allison*knew lie was making his will, at the time he executed the paper first stated in the record, it is equally true that he knew, and intended not to make, his will, hut his deed, when he executed the latter paper. And after all,' what are the particular hardships in this case, which should excite an interest in favour of a will ? To say the least of it, it is an attempt to do indirectly, what the policy of the law forbids directly; it is to give to a set of aliens the benefit of real estate; not by holding out a temptation to migrate and become citizens of the United States; hut to enable them to withdraw from this country its whole value without leaving any thing in return, to the exclusion of heirs, citizens of the state and capable of. inheriting.

*158*Hawks,*for appellee. —

Two inquiries are here presented; the first, is the paper, in form a deed, to he considered testamentary? and if it be, secondly, is the attestation sufficient under our law? It is in this order that the questions naturally arise; for any examination to ascertain whether a paper be attested with the formalities required by law in the execution of wills, is quite unnecessary, if the paper attested is not in law a will; and as the view tftken by the counsel for the appellees on both questions Coincides, I shall not trouble the Court with observations on both, but shall confine myself to the first question, leaving to my colleagues the discussion of the second.

And on the first point made, we .affirm, that so far as tlie/om of the instrument offered as a will is important, there never can be but one inquiry, viz. does the paper on its face show that its maker intended thereby to provide for the disposition of his estate *after death?*

Adverting to English cases decided since these statutes on the subject, wé find, that at no period has any form of words been deemed essential to make a testamentary disposition or will. A will was defined to be, *“a*declaration of the mind in disposing of an estate, and to take place after the death of the testator;” *(Carthew*38.) and in accordance with this definition, a series of decisions is to be met with, in which writings, in almost every variety of form, and agreeing only in the grand essential of indicating a disposition *after death,*have been held wills. Thus, a writing in the form of a *deed*has been held a good will. *Hichsonv. Witham,, (Finch*195.) *Rigdenv. Vallier,*(2 *Ves.*252.) 1 *Ch. Cases*248. So also in the form of an *indenture. (Dyer*166. 2 *Leon.*159.) In the form of *artU des of agreement. Greene*v. *Proude,*(1 *Mod.*117.) 3 *JCeble*310. It may be in the form of a *letter. (Moore*177. ) *Ilab-berfield*v. *Browning,*(4 *Ves. Jun.*200. note.) And an endorsement upon a promissory note, “ I give this note to *A***may be proved as testamentary. *Chaworth*v. *Beech;*(4 *Ves. Jm. 565.)*In North-Carolina the question is not *159new, and it has been here held that a will may be in the form of a *deed of gift. Executors of Henry*v. *Ballard <§• Slade,*(2 *Car. Law Repos.*595.)

It may hence be assumed without fear of contradiction, that had the act of *John Allison*stopped with the execution of the first paper, it alone might have been supported as a testamentary disposition; but it was but *part of an act,*for after making it, he immediately proceeds to the execution of the second paper, referring in it distinctly to the contents of the first. What was the effect of such language of reference, is our next inquiry; and on this subject we assert, that if a testator in his will, refers expressly to any paper already written, and has so described it that there can be no doubt of its identity, and the will is formally executed, that paper makes part of the will whether executed or not. *Metham*v. *Duke of Deroon,*(1 *P. Wms,*529. *Cove’s Ed.) Smart*v. *Prujean,*(6 *Ves. Jun.*560.) *Hábergham*v. *Vincent,*(2 *Ves. Jun.*205. *St C. 4 Brown*353.) *Milledge*v. *Lamar,*(4 *Hessaus. Ch. Rep.*623.)

Ah examination of the two papers executed by *John Al* lison*show a distinct reference in the last to the one first written, and there can be no doubt of the identity of the paper referred to. from the description given of it by *Allison*himself; and the decision below is sanctioned both by reason and authority, for the proposition laid down by us on this subject of reference, is in the very words of Mr.

Justice *Wilson,*in the opinion which he delivered in the case of *Hábergham*v. *Vincent.*

*Badger,*on the same side. — I propose to discuss the second question, was the will duly executed to pass real estate? '

Haii — Is the paper in the form of a deed of trust re? vocable? , , .

*Badger.*— It is clearly testamentary in itself, as we think has been satisfactorily shown, and, being testamen-. *160tary, is revocable. But the will made the same day having referred to it, and being insensible without it, what it would be of itself is not important. For by the words reference it is made part of the will, as entirely as if incorporated with it and written at length on the same sheet; whatever be its character and whatever would have been its operation if it stood alone. It becomes a part of the will because of the reference, and not on account of its own character; because the will needs the explanation afforded by it, and the testator refers to it for that explanation. This effect of words of reference is not peculiar to wills. In a case reported in *East,*[ *Weeks*v. *Maillar-det,*14 *Vol.*568.] the defendant, by articles under seal, covenanted to deliver to the plaintiff “the whole of his mechanical pieces as per *schedule'annexed.”*The schedule was not annexed at the execution of the deed; and upon the plea of *non est factum,*it was held that the schedule formed part of the deed, which would not be sensible without it, and that the articles, though sealed and delivered, were not the deed of the defendant without the schedule. Yet the schedule possessed no one requisite of a deed; it was not sealed nor delivered, it passed nothing, but was a mere list of the pieces. But being referred to by an instrument, it became part of that instrument, and the latter being a deed, the schedule was, by force of the reference, part of a deed. And so of the will, and the paper referred to by it, whatever may be the form or character of the paper standing by itself.

Court. — Proceed with the argument you designed to offer.

*Badger.*— The act of 1784 requires a will of lands to be executed in the presence of “ two witnesses at least, no one of which shall be *interested*in the devise of the lands.”

What sort of interest is here intended? As no explanation is given in the act, the words were not used in any peculiar sense. The legislature presumed that the word *161*interest*had already a fixed and precise signification. Where is that signification to be sought? As the language is that of the makers of the law, addressed to the Judges and to be expounded by them, the meaning is to be sought for in the common law. But the subject of legislation is the qualification of witnesses. The interest referred to is, therefore, such an interest as, according to the rules of the common law, will disqualify a witness. It seems clear, however, that the interest to disqualify must be beneficial. A mere legal estate without benefit, whether in an executor or trustee under a will, or grantee in a deed, is no disqualification; and it will be shown that *Yarbrough*had no other interest.

JExecutor may be a witness, unless he ha* the surplus given him by the will. (Per *Hale,*Anonymous, 1 *Mod.*107.)

Executor in trust, though he has acted and made himself liable to actions, is a good witness to support the will. *Lowe*v. *Joliffe,*(1 *Bl. It.*365.)

A will being lost, the Spiritual Court examined the executors as witnesses, and held good evidence by *Holt,*Ch. J. *St. Legar*v. *Mams,*(1 *Ld. Raym.*731.)

Where there were two wills of different dates, held, that the person who had administered under the first will, was a competent witness to prove a codicil subsequent to both wills, by which the second was revoked and the first republished; although he had, by acting under the first will, subjected himself to actions as executor *de son tort,*in the event that the second w>as the true will. *Bai-lie*v. *Wilson,*(cited by Ld *.Mansfield, 4 Burr.*2254.)

Grantee, where he appears to be a bare trustee, is a good witness to prove the execution of the deed to himself! (Per Ld. *Corvper. Gross*v. *Tracey,*1 *P. Wms*290.)

“ It is .clear that an executor in trust may be a witness.” (Per *Willis, J.*in *Goodtitle*v. *Welford, Doug.*141.)

Executor in trust is a competent witness at law. (1 *Ball*$• *Beatty*100. 414.)

But it is said *Yarbrough*has a *beneficial*interest, ba-*162cause the trustees are authorized by the will to retain a compensation for their trouble. *

Answer. First. No legaoy is given. If *Yarbrough*were dead, nothing would pass to his representatives. It is a mere contingency upon his acting, and then a *quantum meruit*for his labor. There is no bounty, no benefit, no fixed sum. Secondly. The will gives him nothing; for had this provision been omitted, the law would have allowed to the *acting*executors commissions for their trouble. Thirdly. The will itself shows it to be a mere appointment to a troublesome office, and not an interest which could be transferred by law, or assigned by the trustee; for it is provided, that in the event of the death, removal, &c. of any of the trustees, others shall be appointed in their stead by those surviving or remaining.

But if *Farbrough*had ever any such interest as would, if subsisting, disqualify, we insist, that by the release it was discharged, and the will is well proved.

As English cases will be referred to in support of this proposition, it is necessary first to ascertain if the English statute and ours are so far alike that those adjudications are, authority here.

The expression in the stat. of *Charles*is, “ three or four *credible*witnesses.” Whatever doubts exist as to other questions upon this statute, it is clear that credible means competent, and that competency is implied by the w ord witness. There are two causes which produce incompetency, infamy and interest. An infamous person is clearly not a witness under either of the statutes, for infamy destroys *all*ability to testify. As to *interest:*under the English statute, if the witness be interested he is incompetent; and if without interest, he is competent. So under our statute. Interest makes him incompetent; and if incompetent it can only be because he is interested. The two acts, then, are (as to this question) equivalent, and decisions upon the one are illustrations of the meaning of the other.

*163The judgment of the Court of King’s Bench, delivered by Ld. *Mansfield*in *Chetwynd*v. *Windham,*is in point to establish the proposition laid down by us.' (1 *Burr.*414.) . *'*v

# . In this admirable opinion, the distinction is clearly stated between infamy and interest, as sources of incompetency. The former, a positive disqualification of the person;, the latter,.only a ground of rejection, upon a presumption of bias being produced by it. And hence, when the witness voluntarily releases the interest, from which the bias was supposed to arise, the presumption is repelled, and the supposed bias shown not to have existed at all; for “presumptions stand no longer than till the contrary is proved.”

The opinion of Lord *Camden,*in the case of *Doe*v. *Ker-sey,*is relied on by the other side, and stated as of greater authority and decisive against us. (For the opinion in *Doe*v. *Kersey,*vide *Cuningham L. D. verb. Will,*where it is printed at length.)

The first observation that occurs is, that this opinion was not the judgment of the Court. The three other Judges united in a contrary view, and the Chief Justice dissented. It is not, therefore, authority.

Again, the question of the effect of a release, was not presented in the case, for the interest, whatever it was, continued up to the time of the trial in the same plight as at the attestation of the will; consequently the opinion was a mere *obiter dictum.*It was delivered (as is intimated not obscurely in the opinion itself,) merely to measure strength with Lord *Mansfield,*by contesting the doctrine advanced by him in *Chetwynd*v. *Windham.*

But what is the difference between them? They both agree that credible means competent. Lord *Camden*holds that competency “is essential at the time of attestation.” So does Lord *Mansfield,*for he lays down the rule “that a person shall not entitle himself to a devise by virtue of his own subscription, which *at the time of subscribing*he could not have proved by his examination.” (1 *Burr.*424!,)

*164But clearly the witness who has a legacy is competent to prove the fact that the will was made at the time of A attestation. Suppose the question if the will had been t° arise living the testator, (as upon a wager,) could it be objected that the witness then had an interest? Until the testator’s death the will is inchoate, ambulatory, may be revoked; the witness may'die and the legacy lapse. Nothing passes till the testator’s death. Until that event, the legacy is a mere possibility, not an interest. But it is said by Lord *Camden,*that the statute was meant to protect testators against fraud; and Lord Ch. J. *Lee*observes, *(Jlustey*v. *Dowsing, Strange*1258.) that at the time'of attestation the witness is under a temptation to commit a fraud. Now, it may be observed, these Judges have left the ground of that interest which disqualifies, and have assumed the general and indefinite position of a temptation to commit a fraud, by which it is clearly admitted that there is no interest in the witness. But Lord *Mansfield*furnishes a conclusive answer. He observes, «the presumption of bias arises as at the time of subscri-ing;” but «during the life of the testator, devises are mere possibilities,” and «the presumption of bias from the *possibility,*is answered by the fact when it becomes an interest.”

Lord *Camden*stigmatises this doctrine of Lord *Mansfield*as «pregnant with mischief and absurdity.” From himself, therefore, we have a right to expect a doctrine free from both. But what is his construction? A. witness having a legacy, is presumed under a bias to commit a fraud; the testator dies, and the witness refuses the legacy and releases all right to it; and still he is presumed by his Lordship to have been tempted by it to a fraud. What is the fraud intended? To fabricate a will. What the motive? ¡¡To procure a legacy. How is the witness to carry this fraud into effect? By renouncing the legacy which was the only motive to contrive or execute the fraud. *A*judge whose construction of a sta-*165lute against frauds leads to such results, can have little right to object to the judgment of another on the score of absurdity.

But farther, the opinion of Lord *Camden,*taking it as law, does not affect this case; for he admits the general practice of Westminster Hall had been, that a release was sufficient; and says, “ this practice is a weighty argument, and should never be slighted.” But he alleges ihe practice to have been confined to money legacies, and did not extend to a witness who was a *real devisee.*In our case, the compensation, if a legacy, is but a *money legacy.*

The statute 25 *Geo.*2. *ch.*6. furnishes a strong support to the construction contended for by us. That act not only prescribes a rule as to the execution of wills thereafter to be made, but expounds the meaning and intent of the statute of *Charles*as to wills already made. It declares that a witness who shall have released his legacy, whether the same were charged upon lands or not, shall be a admitted as a witness, &c. within the intent of the said act.

The case of *Jlustey*v. *Bowsing,*cited on the other side, was where the legacy and an annuity charged upon lands, were neither paid nor released; and the decision of the Court was merely that a tender of the *legacy*to the witness, which was refused, did not restore the competency, The reasoning of *Lee,*Ch. J. was not that of the other Judges. (Vide 1 *Burr.*427.) Besides, in that case a writ of error wTas brought, and the Judges being divided in opinion, a compromise ensued, and no final decision was had. (Vide *Prize*v. *Lloyd,*1 *Ves. Jun.*503.) The opinion of Lord *Hardwicke*was the same with that of Lord *Mansfield. (Ibid.)*

We are supported, then, by the general practice Of Westminster Hall, the resolutions of the Courts, and a legislative exposition of the statute of frauds, and opposed only by the opinions of Lord *Camden*and Ch. J. *fice,*ill which their brethren did not concur.

*166Bat farther, if the technical strictness demanded on the other side is to obtain; if the appointment with compensation for the trouble of executing it, when the person ap-Panted has renounced and therefore never had for a mo* ment any right to such compensation, is to be considered a benefit; then we ask the application of the same strictness of construction throughout. The statute says, «interested in the *devise*of the lands.” But here is no devise to any one. There is not an expression which passes any estate. The words “assign. &c.” quoted by the adverse counsel, relate, not to the real property, but to the bank stock.

If we look to the spirit of the law, there is clearly no such benefit as could have been within the contemplation of the legislature. If we are to confine ourselves to the words, a *devise*of lands only is mentioned, and here we have only a naked power to sell, coupled with no legal estate. And in either way, the objections must fail, and the will be established.

*Gaston,*on the same side. — The paper commencing *“*Know ye,” is a *.’will*in itself. A will is defined to be a lawful disposing of that which one would have done after death. (1 *Swiiib.*as. *Co. Lit.*111. *Carthew*38.)

The paper here alluded to passes no *immediate*right, either of present or future enjoyments; it does not contain the words, “ bargain and sell,” nor any thing equivalent thereto. *(Shep. Touch.*219.) As to the property mentioned in tlie paper, the lots of land are not conveyed thereby, but authority is given to sell them after his death; the bank stock, if not sold before his death, is assigned to be sold “ after my death.” The language used throughout shows, that the disposition of this property after his death was what he designed to declare. Thus he says, “giving my trustees as full power as if I were living,” «the money to be applied to the purposes mentioned in my will,” “ debts due, at my decease, to bec.oh *167lected,” *“*physician’s bill and funernal charges to be paid:” and he concludes the paper with directions reía-tive to bis interment. There is no proof that this instrument ever passed *out of his hands*during his life; and he gives direction to have it recorded after his death.

That the paper is itself a will, follows from the clears est elementary principles, and from authorities; for, as has been observed, there is no appropriate form of instrirment required for a will; and to the authorities already cited for the appellee, may be added the following:

A man beyond sea wrote a letter, in which he expressed his wish that his lands after his death, should go in a particular manner; held to be a good will. *(Moore*341» *pi.*363. 2 *JDanv. Jib.*539. *Gilb. on Dev.*85.)

So a writing in the form of a bill upon a banker for 100Í. to buy mourning for the wife of the writer, has been held a will. *Lawson*v. *Lawson,*1 P. *Wms.*440.)

So also in the form of a letter stating the contents of a will, but adding a farther expression of his wishes. *Hall*v. *Heriver, {Ambler*203.)

So, in the form of a deed of gift, not to take place until death, accompanied by the delivery of six pence by way of putting grantee into possession. *Shargold*v. *Shar-gold,*(2 Ves. 440.)

See also the cases of *Clymer*v. *Little,*(1 *W. Bl.*345.) and *Peacock*v. *Monk,*(1 Fes.) establishing the doctrine for which we contend: and in the celebrated case of *Ua-berghdm*v. *Vincent,*already referred to, the language used is remarkably strong. “ It is immaterial whether testator calls it a deed or a will; if it does not take effect on its execution; if the interest, powers and capacities which it designs to create do not *arise*until after death, although there be express words of immediate grant, and a consideration to support it as a grant; if on the whole, the intention is, that it shall have a future operation after death, it must be regarded as a will.” And to the same, effect are *alt*the respectable elementary writers. (T-omV *168*Dig-. “Devise,” M*1. *D.*1. 4 *CrtáSe*155. *Powell’s Swinb. 77. Roberts on Wills 73.) J*

But this instrument, if not in itself a will, is expressly referred to, adopted, confirmed and incorporated into a a will, dated and executed the same day before the same witnesses: it is as completely incorporated as if repeated *verbatim et literatim. Habergham*v. *Vincent,*and *Mil-ledge*v. *Lamar,*already cited, and *Pow. on Dev.*23.

But it is said that the test of a will is its revocable quality; and it has been asked if this instrument could have been revoked. It is a mistake to say that this is the test of a will, for an instrum* nt may be revocable and yet not a will; e. g. a deed reserving a power of revocation, a letter of attorney. An instrument may be testamentary, and yet not being *wkolly*so, may in part be irrevocable. Thus, a deed for life is made, afterwards a will referring to it, and declaring that testator confirms the disposition made by the deed, and after the death of the grantee gives the property to his heirs: it cannot be doubted but that, claiming under the two as one testamentary act, he takes a fee simple under the will; yet the first instrument is not absolutely revocable.

But in this case *all*the dispositions of the paper are revocable. It is not stated, and therefore cannot be presumed, that *Mlison*ever *delivered*the paper so as to make it his deed, and in fact the opposite counsel have agreed on the fact of his having retained it. Now without delivery, if the words were sufficient, *nothing*passed, and until the owner had divested himself, he might do as he pleased with the property. But if he had delivered the paper, *nothing,*passed, for there are no operative words in it to give an estate as to the lands for *one moment,*it is a mere power of attorney: the trustees could not have turned *Mlison*out, or brought an ejectment against any person in possession. As to the bank stock, the retaining an unqualified power to sell, makes the assignment to the trustees, for sale after his death, purely a naked power. *169*Idc*v. *Me,*(5 *Mass. R.*5Q0.) "Why in general is a will revocable? *Solely,*because it is to have no operation until death. *(Lit. s.*168. *Co. Lit.*112 *a. b.)*But be this as it may, after the incorporation *ot*this paper into the will, if before it had been a deed *inter vivos,*it then had a new and additional operation; it is made part of that will, and whatever it cannot effect as a deed, it shall then effect as a testamentary disposition.

The second question which has been made is, was this will duly attested, *Yarbrough*being one of the witnesses; can it operate to pass real estate? The answer to this question depends on the construction of our act of 1784, and of the words in it, “ no one of which shall be interested in the devise of said lands.”

Unless it can be shown that *Yarbrough*is incapacitated, the will is well attested. The interest which excludes must be *certain*and *fixed.*Did he then ever have *an interest*in the devise of these lands? The intention of the legislature in requiring an exemption from interest in the witness, shows, that by interest they meant, not a nominal, but a *beneficial*interest. The interest which by the common law incapacitates a witness must be a beneficial, nota formal one. *(Gill. Ero.*123. *Peake*156. 162. 1 *Mod.*107. 12 *East*250. 7 *Mass. R.*398. 4 *Taunt.*'326.) Here no beneficial interest is given to *Yarbrough;*he is a mere attorney, taking nothing under the will, entitled to nothing, except compensation for trouble and services, *should he ever render them.*

Again, if mere formal, technical interest will exclude, he has not here (as will be found on examining the instrument) even such an interest given him; it amounts to a mere *naked power to sett. (Lit.*169. *Co. Lit.*112 *a.*Poto. *on Rev.*292, 3. *et*seq.)

A mere agency is offered to him, no legacy or devise accompanying it, nothing but a compensation for trouble, and that not *fixed,*but a mere *quantum meruit,*and necessarily conditional on his acceptance of the office and *170performance of the duty. It is not accepted, he refuses to perform; and where, we ask, is his interest under these . , circumstances?

*Yarbrough,*has released. The great controversy in England whether a witness interested could release, arose on the word *“credible”*in the British statute; and even then,' die entire weight of authority is in favour of the release. The case of *Hilliard*v. *Jennings,*(1 *Ld. Ray.)*cited on the other side, decides nothing about it either directly or indirectly. *Jlustey*v. *Dowsing,*(2 *Strange,)*is not founded on it; it contains only an *obiter*remark of Ch. J. *Lee,*and was compromised during the pendency of an appeal. (See 1 *Ves. Sen.*503.) In *Doe*v. *Kersey,*Lord *Camden*was *alone. (See Powell*132.) Lord *Hardwicke*clearly thought otherwise; (1 *Ves.*503. and 2 *lb.*374.) as did Loi'd *Mansfield*and the Court of K. B. in *Wyndham*v-. *Chetwynd,*(1 *Burr.)*and *Goodtille*v. *Welford,*(1 *Doug.*140.) See also 2 *Bay.*448. 3 *liar,*dj- *MiHcn.*513. 5 *Mass'. R.*228, 9i

Our act of 1784 uses no such doubtful word, but states what disqualification On the score of interest shall incapacitate the witness. The act cannot *well refer*except to the moment of deatii, “shall be interested, ix.c.” besides the witness can take no interest until death. •

The act makes this species of interest a disqualification; but one of the same character writh all other disqualifications on the score of interest. As to these disqualifications, how did they stand? A legatee could not prove the will and *keep his legacy,*nor a devisee be a witness *without a release.*So by our law, lands shall not pass, unless the will be attested by two witnesses, no one of whom shall take. The presumption is, that all will take a benefit, but this presumption is entirely removed by a release.

But farther, if any interest is given to *Yarbrough,*it is 9 *pecuniary*legacy, which affects not the *attestation*to the devise.

*171Tatuóii, Chief Justice. —

It may be satisfactorily inferred from the cases cited, that any writing by which the intention of the party to dispose of his estate after his death appears, will amount to a devise, provided such intention be consonant to the rules of law, and the writing have the formalities required by the act. It is of no moment whether the testator would have called the instrument a deed,' or a will. The true inquiry is, how will it operate? and if the provisions in it are testamentary, it must operate as a will. The difference between a deed and a will is this: the former must take place upon its execution, or never; not by passing an immediate interest in possession, for that is not essential; but'it must operate as passing that interest when the deed is executed. Thus, where a father covenants to stand seized to the use of ,his son, reserving a life estate to himself, the deed takes effect at once, by passing an interest to the son. But a will can only operate after death. Does this instrument convey to the trustees any power or capacity of acting till after the testator’s death? It assigns over and conveys to the trustees, what? not any property; but *“*that immediately after his decease, or as soon thereafter as may be found convenient,” he authorizes them to sell his bank stock and real estate, and apply the proceeds in the manner lie directs» They are hot authorized to take a single step in the business of his estate, till after his death; nor does he part with, or impair, his dominion and control over the property while he lives; indeed, it is a plain manifestation of what his intent was, that he directs the instrument to be recorded, only after his death; and there is no reason to believe that he ever parted with the possession of it during bis life time.

In *Hixon*v. *William,*(1 *Ch. Ca.*248.) the writing was in the form of an indenture, and used the terms “grant, bargain and sell,” yet it was decreed to be a good will. In *Proude*v. *Green*(1 *Mod. 117.)*articles of agreement, which used the word “ give,” and were delivered as an *172áct and deed, were held to be a will. The cases general* ly established the position, that whatever the instrument , may he called by the party, or however it may be considered hy him, if the intention upon the whole be, that it shall not operate before his death, it is then testamentary. In addition to this, there is much weight in. the reasoning, that this paper is so plainly referred to and incorporated in the will, as to become a part of it, although it had not been duly executed. But then it is indispensable, that the will should be executed according to the directions of the act of 1784. This is the only part of the case in which I have entertained any doubt; but after much consideration my opinion is, that it is not attested by two such witnesses as that act requires. If the act had merely required the will to be attested by two witnesses, the common law would have instructed us, that their competence at the time of proving the will, would have been sufficient. The words which follow in the act, *two witnesses at least, no one of which shall be interested in the devise of said lands,*must be supposed to have been inserted for some purpose; and this could only be to refer their competence to the time of attestation.

The preamble to this section of the act, professes to gqard against the undue influence of those about a testator in his last moments; and it must be a strong inducement to attempt the exercise of this influence, if a witness is. interested at the time of his attestation. The subsequent act of 1784, asserts, that it was the design of this requisite of the attestation of witnesses, to prevent fraud and imposition.

The statute of frauds required a will to be attested and subscribed in the presence of the devisor by three or four *credible*witnesses. Much difference of opinion existed whether this competence (for so the word was understood) should be referred to the time of attestation, or to that of proving the will; and I think it difficult to read the cases on this subject without a- conviction that the weight *173of authority, as well as reasoning, is in support of the former opinion. In one of the earliest cases to be met with on this question, the testator disposed of his real estate by will, and gaye to one J. *H.*and his wife 10/. each for mourning, with an annuity of 20Z. to *E. H.*the wife of J. *H.*The will was attested by three witnesses, whereof *J, II.*was one. The legacies and ■ satisfaction for the annuity were tendered and refused. The question upon the special verdict was, whether or not the will was well attested according to the statute of frauds. The Court, was unanimously of opinion, that the right to devise lands was not a common law right, hut depended upon the powers given by the statutes, the particulars of which were, that a will of lands should be in writing, signed and attested by three *credible*witnesses, in the presence of the devisor;, that these were checks to prevent men from being imposed Upon; and certainly meant that the witnesses to a will (who are required to be credible) should not be persons entitled to any benefit under that will. In answer to the objection that nothing vests till the death of the devisor, and therefore at the time of the attestation the witness had no interest, the Court said, that he was then under the temptation to commit a fraud, and that is what the parliament Intended to guard against; that the-true time for his credibility is, the time of his attestation; otherwise a subsequent infamy, which the testator knows nothing of, will avoid his will, *Austey*v. *Dowsing,*(2 Stra. 1254.)

Lord *Camden’s*opinion, though at variance with that of the Judges who sat with him, in the case of *Hindon*v. *Kersey,*deserves much weight, not only from its cogent reasoning, hut from the circumstance that the legislature, within a few years after its delivery, adopted its policy and principles, by destroying the interest of the subscribing witness, whatever it might be at the moment of attestation. This was by the act of 25 *George*2. passed about thirty years before our act of 1784. The whole controversy must have been known to many members of the *174legislature of that (lay, and I think they had the same no-licy in view, though they have pursued a different course to attain it. The question to be asked on a will is, whe-^lCi' th® testator was in his senses when he made it, and that is the important moment when vigilance and caution áre most necessary in the witnesses, and when their minds should be most free from any bias that might warp their judgment. In other cases, according to the opinion" quoted, the witnesses were *passive;*here they were *active,*and in truth the principal parties to the transaction. The testator was entrusted to their care. The design of the .statute was to prevent wills from being made, which ought not to have been made, and always operates silently by intestacy. It is true the design of the statute was to prevent fraud, though no fraud appeared in that case, yet it prescribes a certain method, which every one ought to pursue to prevent fraud. As to the minuteness of the interest, as there was no positive law which was able to define the quantity of interest which should have no influence upon men’s minds, it was better to have the rule Inflexible, than to permit it to be bent by the discretion of the Judge.

Under this construction of the afct of assembly, which, however reluctantly, since it disappoints the will of the testator, I think the true one, my opinion is, that the witness was disqualified, since he, anil the other trustees, were authorized to retain a sufficient compensation for their trouble. This gave them an interest in the devise of the lands, and would, upon common law principles, render them incompetent to prove the will, as to the land. Though in England, the office of an executor who has no commissions or a legacy, is a burthensome one, here, it is well known to be sometimes a profitable one, and never injurious but from mismanagement.

Haxe, Judge

—There can be no doubt but that the paper writing which purports to be a will of the personal-*175estate, was properly proved in the County Court, and that the judgment given thereon in the Superior .Court ■affirming, it was correct. But the question in reality submitted'to this Court is, whether, first, the paper writing purporting to be a deed, w'as in its nature testamentary; and if so, secondly, whether it was .legally proved, as the law prescribes. My opinion on the*last question renders it unnecessary to give any opinion upon the first.

The second question, in substance, is, whether *iDavid*ifarbrongh, who is a subscribing witness to that deed, with *William Horton,*the only other subscribing witness, was in law a proper witness to prove its execution. He is one of four trustees named in that instrument, for the purpose of selling the real estate of *John Mlison,*wiio executed it; and 'there is a clause in it as follows: *“*and the said trustees are hereby authorized and directed to retain to their own use out of the moneys that may come to their hands, a sufficient compensation for their trouble in performing and executing the trust hereby reposed in them, and also for discharging any debt that may arise from a sick or death bed, or physicians’ aid if required, and fit* neral charges.”

By the.act of 1784, *New Rev. ch.*204. *sec.*11. it is enacted, that no last will or testament shall be good, in law or equity, to convey any estate in lands, &c. unless such will shall have been written and signed by the testator, and “ subscribed in his presence by two witnesses at least, no one of which shall be *interested in the devise of said lands.”*This act is supposed, by the plaintiff’s counsel, to have a resemblance in principle to the devising clausp of the English statute of frauds, in which it is declared, that all devises shall be attested and subscribed in the presence of the devisor by three or more *credible witnesses,*or else shall be utterly void and of none effect. The point has been much controverted in England, whether the subscribing witnesses should be credible or competent at the time-of attesting the will, or at the tkn* *176when called upon to prove its execution. The question has also been examined with ability by the counsel in this' case. I do not think it necessary to give any opinion on because I think the act of 1784 puts the question at rest. I will only say, that if the test of qualification is to be applied at the time when the execution of the will is attempted to be proved, it appears to me that the term «credible, is a dead letter in the statute, because the rules of evidence would not permit other than competent witnesses (which Ld. *Mansfield,*in 1 *Burr.*414. says the term credible witnesses in the statute means,) to be examined to prove the execution of a will, if the statute had not made such provision.

The same remark may be made as to the act of 4784. If a subscribing witness to a will is interested in a de7 vise therein, and afterwards becomes disinterested by a release, or by any other means, and thereby a good witness, tiie clause would be inserted for no purpose, which declares that “ no one of which shall be interested in the devise of the said lands,” because if no such provision had been made by the act, the rules of evidence would prevent any witness from being examined who was not at the time disinterested.

But T think the legislature, by the act in question, intended to remove temptation out of the way, and not suffer wills to be tnade through the procurement of fráud; and this they could not better accomplish than by not suffering any person to attest a will, unless at the time the person so attesting was disinterested in the thing devised.

If, therefore, *David Yarbrough*had an interest in the instrument he attested, at the time he attested it as a witness, the release by him made, will not restore his 'competency.

The clause which I have before recited furnishes employment for him and gives compensation for it. It is like the common case of allowing commissions on the amount ot the business transacted. This case does not resemble *177those cases where witnesses are received from necessity* and for the sake of trade, as when a person is employed to sell goods, and is to have a certain per cent, on the -amount sold, he is competent to prove the contract of sale. (2 *H. Bl. 590.*3 *Wils.*407.) Sec *Guillim Bac. Evidence B.” Norris' Peake*240. It is very true, the interest in the Avitness in this case is very small; but this Court, on that account cannot overlook it; it cannot judge between different degrees of interest. If this objection was overruled, at some future time a witness somewhat more interested might be offered; and so on, till the rule which rejects interested witnesses would be done away altogether. The rules of evidence are of great consequence. Ld. *Kenyon*says, our laws, liberties and property depend upon them; they ought to be preserved inviolate.and unshaken. For these reasons I am of opinion, that *David Yarbrough,*(whose character is admitted to be pure and upright,) is not in law7 a competent witness to prove the paper writing, (which on the face of it purports to be a deed,) which, in the Court below7, has been offered and proved as a will.

Heeberson, Judge. —

There is no dispute as to the instrument in the form of a will. I am of opinion that the other paper, in form a deed, is testamentary as regards the personal property therein mentioned. I am rather inclined to think that it is not testamentary as regards the real estate; but on this point I wish it understood that I give no opinion, as it is unnecessary, for if it was testamentary,'! think that it is not sufficiently proven; *Yar-brough,*one of the two attesting witnesses, being therein appointed a trustee for the sale of the lands, and entitled to a compensation for his services therefor; for the disqualification relates to the time of attestation, and not to tfie time of giving evidence.

I concur in the opinion, that the judgment of the Su,-■perior Court be reversed so far as the prebate of the said *178last mentioned instrument is established, and affirmed as to the other parts of the judgment; and that the plaintiffs pay the costs of this Court, and that the defendants pay the costs below, so far as regards the establishment of this instrument as a will of personal estate, and that the plaintiffs pay the residue of the costs.