#### PENELOPE MATHEWS *v.*GIDEON C. MARCHANT.

June, 1838.

A “credible witness” to prove a nuncupative will under the 15th section of the act of 1784 (1 Rev. stat. c. 122 sec. 2,) means one who is competent according to the rules of the common law ; and if he be incompetent from interest, such incompelency may be removed by a release.

A party cannot, by refusing his assent to a release or surrender tendered by a witness on the other side, exclude his *testimony.*The depositing the release in the clerk’s office will be sufficient to enable the witness to testify.

This was an issue of Devisavit vel no», as to a paper writing propounded for probate as the nuncupative will of Penelope Mathews the elder. Upon the trial of the issue at Pasquotank on the last circuit before his Honor Judge Settle, the jury found a verdict establishing the will, subject to the opinion of the Court upon the following facts.

Penelope Mathews, during her last sickness, duly made her will without writing, and called upon a competent number of persons to bear witness thereto; it was reduced to writing in proper time, and all the other ceremonies which the law requires were duly complied with. The only question presented to the court was whether the witnesses were competent.

One witness was admitted to be competent, but the other witness was a legatee in the nuncupative will, but duly executed and offered a release to the distributees, which they refused to accept, whereupon he delivered the same to the clerk of the court, absolutely for their benefit. It was admitted by the parties that if the legatee could in any way *41render himself a competent witness by any release that could be executed by him, without the assent of the distri-butees, that such release should be taken as executed.

. The ease of . *Allison Aiúsmi*proved,

Upon these facts his Honor was of opinion “ that although in a will of real estate the competency of the witness is referable to the time of execution, and that policy would seem-to require the same qualification in the witness to a nuncu-pative will, yet it is c&mpetent in the legislature to prescribe different qualifications, and that in the proof of a nuncupative will the statute uses no language that does not apply to a witness competent at common law.” His Honor therefore held that the will was well proved and the defendants, appealed.

The case was submitted without argument by

*A. Moore*for the defendants, and

*Kinney*for the plaintiffs.

Danieu, Judge.

The 11th section of the act of 1784, (see 1 Rev. stat. ,c. 122 sec. 1,) requires a will of lands, to be subscribed by two witnesses in the presence of the testator, no one of which shall be interested in the devise of the said . lands. This court determined mthe case of *Allison*v. *Allison,*4 Hawks, 141, that a witness to such a will, wTho was interested at the time of attestation, was incompetent to prove the will; and that no subsequent release would render -him competent. This decision arose upon the peculiar phraseology of the 11th section. The 15th section of the s.ame act, (1 Rev. stat. c. 122, sec. 2,) is couched in different terms; it declares that ho nuncupative will in any wise shall be good, where the estate exceeds two hundred dollars, unless *proved*by *two'credible*witnesses, present at the making thereof. The section in our act, is mainly taken from the 19th section of the English statute of frauds. That section" in the statute of frauds declares, “ that no nuncupative will shall be good, when the estate thereby bequeathed shall exceed thirty pounds, that is not *proved*by the oaths of three witnesses.” This statute having said nothing as to the qualifications of these witnesses, it was afterwards thought proper to declare, (stat. 4, Ann, ch. 16, sec. 14,) “that all such witnesses as are and ought to be allowed to be good wit*42nesses upon trials at law, by *the laws*and customs of this realm, shall be deemed good witnesses to prove any nuncu-Pat*ve or anY thing relating thereto.” This legislative interpretation is, we think, just such a one as a court of common law necessarily must have put upon the section, had the explaining statute never been 'passed. Witnesses, disinterested at the *time*they are called on to *prove*the nuncu-pative will, must be considered to be “ *credible,”*within the meaning of the 15 section of the act *of*1784, or in other words *competent*according to the course of the common law. We see nothing in the wording of this section, (it being confined to wills of personal property) *to*induce us *to believe*that the legislature 'intended to interfere with the rules of proof established at common law. The objection to competency on the ground of interest is removed by an extin-guishment of that interest, by means of a release. And a party cannot, by refusing his assent to a. release or surrender, tendered by a witness on the other side, exclude his testimony. 1 Stark, on Ev. 125, 126, 3 Term Rep. 27. The depositing the release in the Clerk’s office, was sufficient to enable the witness to testify. *Perry*v. *Fleming,*2, Car. Law Repos. 458. We think, after the release, given, the witness was competent to prove the nuncupative will men-^one(^ an¿ j]le opinion of the Court was correct.

The ease of *pTMy ZCarLavr*Repos. *458,*approved.

Per Curiam. Judgment affirmed.