#### CHARLES MALLOY, *et al. propounders v.*MATTHEW McNAIR, *et al.,*caveators.

A provision in a will that a certain female slave *‘L*will be set free, if she behaves herself as a good character should do — to be under the care of my daughter J. and her daughters,” conveys no interest, either legal or equity ble, to the daughters of J.

Where a script was attested by three witnesses, one of whom was incompetent on account of a pecuniary legacy, and .afterwards a legacy was transferred from one legatee to another, by erasing the bequest in one part of the instrument and interlining it in another, as to which acts one of the competent witnesses to the first execution, and the -one taking the legacy, again attested it, the alteration in no wise affecting his legacy, *held,*that the script, in its altered condition, was duly attested.

This was an issue *devisavit vel*non, tried before Persoh, J., at the Spring- Term, L857, of Richmond Superior Court.

The script propounded as the last will of Niel McNair, is (materially) as follows:

“ 1st. I give to my daughter .Miriam Smith, a tract of land -on which she and her children now live, called the fork tract, &c.3 (with certain contingent limitations of the same.) I also give and bequeath to my said daughter, *a servant ly the name of Nanay cmd her three*children, to her, and to the heirs of her body for ever.

“2nd. I give and bequeath to my daughter Sarah Gibson, a boy named Philip, (with limitations over.)

“ 3rd. I give to the children of my daughter Anne Eliza Chance, dee’d., a servant named Lizzy, and a boy named Ilenry.

4th. I give and bequeath to my grandson, Niel A. McNair, one hundred dollars, as he needs it.

5th. I give and bequeath to my son, John C. McNair, five hundred dollars, to be given him by my daughter Jane Mc-Nair, out of any monies on hand, or due to me at my death.

6th. I give and bequeath to my son Matthew McNair, a servant named Peggy, and her offspring. The other proper*298ty I gave my son Matthew *W.*was conveyed by me to him, by deed and bill of sale.

7th. I give and bequeath to my daughter Catharine Mc-Nair, a servant named Emily, &c:

8th. I give and bequeath to my daughter Jane McNair, all my lands on both sides of gum swamp, including the mansion house and premises on which I now live, * * * * together with the following servants, to wit: “ *Nanay and her offspring,”*Suclcey, Jim, Statira and offspring, Charles, Caroline, Eliza and her son Milton ; Eliza’s other child, Minerva, will be set free, if she behaves herself as a person of good character should do, to be under the care of my daughter Jane and her daughters, to be taught to read the new testament. -Also I give to my daughter Jane, Celia and her offspring, Charles, a blacksmith. I also give and bequeath to my said daughter Jane, the land I own on Bridge creek. * Also my negro woman Hannah, to remain with my said daughter. Also I give and bequeath to my daughter Jane, all my blacksmith tools, farming implements, wagon and gear, two carriages and harness, all my horses of every description, all my cattle, hogs, poultry ; all my household and kitchen furniture, cotton-gin, press, and all my other property of which I may die seized and possessed, not otherwise specially devised.” Dated 1st of December, 1855. Signed by the testator, and witnessed as follows: *“*Signed, sealed, pronounced and declared, by the testator, Niel McNair, as his last will and testament, in the presence of us, who, in the presence of the said testator, have subscribed as witnesses. Test, D. Mc-Laurin ; Test, Miriam A. McNair; Test, Niel A. McNair; Test, Miriam A. McNair.” Testator died 7th of January, 1850.

Duncan McLaurin was the writer of the will, and proved its execution according to the forms of law, also its subsequent erasure and interlineation, as stated below.

Miriam a McNair, another subscribing witness, was offered, and objected to by the caveators; because, that by a clause in the 8th item of the will, Minerva is bequeathed to Mrs. Jane McNair and her daughters, of whom the witness was one. *299The witness was admitted, by the Court,' and proved the due execution of the will as drawn by McLaurin; and she and McLaurin both proved it as originally executed. Miriam Mc-Nair proved that the words in *italics*in the 1st item of the will in relation to Nancy and her children, were erased by the testator with his own hand, and the words also stated in the 8th item in italics, in relation to Nancy and her offspring were interlined by the testator; she stated that she had witnessed the will twice, the last time with Niel McNair, upon the occasion of the erasures and interlineations as above set out; that this was done at the request of the tes-tatator, a few days after the original execution of the will. The will, as originally witten, was still' legible, notwithstanding the erasure. Niel A. McNair is the person mentioned in the 4th item of the will, and was objected to on account of interest, being a legatee under that item ; and the objection was sustained.

The Court instructed the jury that, taking the evidence to be true, the marking or erasures could not affect the other parts of the will, inasmuch as it was done only to alter., the disposition of Nancy and her children, which he attempted by the interlineation, but which failed for the want of proper attestation; that they should find the script as first written and attested, to be the last will- and testament of Niel Mc-Nair, because the revocation, as to Nancy and child, was only upon the condition that the interlineation should take effect. The caveators excepted.

Yerdict in favor of the propounders. Judgment and appeal.

Winston, *Sen’r.,*for the propounders.

*Kelly*and *Cameron,*for the caveators.

Pearson, J.

Miriam McNair does not take either a legal or an equitable interest in the girl, Minerva, consequently she was a competent witness.

The will directs Minerva “ to be set free.” This is incon- . *300sistent with tbe idea that any one was to have an ownership, or interest in her, as property. The intention was simply to recommend her, after she was set free, to the eare and patronage, and friendly offices, of the testator’s daughter Jane, and her daughters; which was the more proper, as he had given the mother and brother of Minerva to his daughter, and, no doubt, expected she would allow Minerva to continue to live with the family.

In *Simpson*v. King, 11 Ire. Rep. 377, the intention was to vest the legal title in some one, as the ostensible owner of the slave, who was to be in law his master, but was to allow him certain privileges, and was not to treat him as a bond slave. In our case, the intention was to set the girl free. So, no one was tp be her master, either really or ostensibly. This distinguishes *it from Simpson*v. King, and from *Lea v. Brown,*3 Jones’ Eq. 140.

The script was, therefore, duly executed, and ought to have been admitted to probate, either in its original, or in its altered condition. In this question Niel A. McNair had no interest, for it would in no wise affect the legacy of one hundred dollars, given to him, whether Nancy and her children passed under the first item, or under the 8th. So, there is error in holding that he was not a competent witness in reference to the cancellation and interlineation of that part of the script. He was competent, and the attestation of Miriam A. McNair and this witness, ought to have been allowed the effect of establishing the script as a will in its altered condition.

Suppose the original script had been left unaltered, and a codicil added, changing the legacy in respect to Nancy and her children, by giving them to Jane McNair instead of Miriam Smith, and the codicil duly attested by these two wit nesses, could it be seriously insisted that Niel A. McNair was not a competent witness, because he had a legacy given him in the will ? Instead of making a codicil, the testator resorted to the shorter mode of cancelling and interlining, and took the precaution to have two attesting witnesses to the script *301in its altered condition. This bad, in law, precisely, the same effect as a codicil, and, of course, the principle is the same in regard to the competency of the subscribing witnesses.

It is unnecessary to decide the point as- to the effect of the statute, which went into operation after the will was executed, but before the death of the testator. Nor is it necessary to notice the exceptions taken to the charge. There must be a *venire de novo.*

Per Cubiam. Judgment reversed.