#### Joseph Hawes, Appellant, *versus*James Humphrey *et al.*

By “credible witnesses ” in *St,*1783, *c,*24, respecting the attestation of wills, i* meant *competent*witnesses.

The witness must be competent at the time of the attestation.

A testator devises real and personal estate to his wife for her life, and after her le» cease, to trustees for the use and benefit of all such persons as shall hereafter reside in a certain part of a city, to be applied to the support and maintenance of the gospel ministry in a church and society of the congregational denoninalion which may be formed, incorporated and organized in that part of the city, and to the purpose of establishing a school there; and the will is attested by persons residing there at the time of the attestation. It was held, that the witnesses were not incompetent by reason of interest; 1. because their interest was contingent, it being uncertain whether the wife would not survive them, and whether there would be a congregational church and society there, and if there should be, whether the witnesses would become members of the same; and 2. because it did not appear that they would be exempted in any degree from taxes, by reason of the devise, and without that the privilege of attending public worship and participating in the advantages of education, do not constitute such an interest as will disqualify a witness.

A conveyance by a testator in his lifetime, of only a part of the estate deviled in his will, is but a revocation *pro*tanto, and furnishes no reason why there should nor be a probate of the will.

The construction and validity of particular clauses in a will are not to be inquired into on application to a judge of probate to approve and allow the will.

John Hawes died on January 22d, 1829, and his last will, bearing date October 23d, 1813, was approved and allowed by the judge of probate in this county, on March 9th, 1829. From this decree Joseph Hawes, an heir at law, appealed.

The reasons of appeal were, because the witnesses to the will were not competent and credible witnesses, being inhabitants of South Boston and interested in the devises in the will. - ■

Because the will had been revoked by various acts and deeds of the testator in his lifetime ; the testator having conveyed by deed the lands described in several of the clauses of the will: —

Because the will is void, being against the statutes of mortmain and the statutes of this Commonwealth, and creating perpetuities and indefinite and useless accumulation : —

. Because the will is void for want of legal and competent devisees to take according to its provisions • -

*357Because it is void for vagueness and uncertainty and want of object and meaning : —

And because the provisions and appointments in the will are so uncertain, and the contingencies on which they depend so remote and obscure, that the same are incapable of being carried into effect.

By the will the testator devises to his wife, during her life, the use of the whole of his real estate and the income of all his personal estate. He then gives real estate and pecuniary legacies to divers persons, the devises to take effect after the death of his wife.

In the twenty-second clause of the will, he devises to cer tain persons, sight acres of land in South Boston, (which is a part of the city of Boston, separated from the residue by an inlet of the sea,) to hold, after the death of his wife, in fee simple, as joint tenants, in trust for the use of all such persons as shall hereafter reside at South Boston ; — one half of the income and proceeds of the land to be applied forever, by the trustees, their associates and successors, to the support and maintenance of the gospel ministry of the congregational denomination in and over the first Christian church and society of that denomination, which may be formed, incorporated and regularly organized in South Boston and which church and society shall worship in a house to be erected on a lot of land conveyed by the testator in 1807 to the inhabitants of South Boston for the use of the gospel ministry ; — the other half of the income and proceeds to be applied forever for the purpose of establishing and supporting public schools in South Boston in such way and manner as in the opinion of the trustees, their associates and successors, shall most tend to the benefit and advantage of the inhabitants of South Boston.

In the twenty-third clause he devises the residue of his real estate to the same trustees, to hold in like manner for the uses mentioned in the preceding clause, and also to be applied to the establishment of a second congregational church and society in South Boston at such place as the trustees, their associates and successors shall appoint, to the settlement and support of a minister over the same, and for erecting and maintaining a house of public worship for the same, and for the support and encour*358agement of such other seminaries of learning, and in such way, as thetrustees, their associates and successors shall think most for the honor of God, and the good and happiness of the inhabitants of South Boston and their posterity.

In the twenty-fourth clause he gives the residue of his personal estate to the trustees, to be applied, after the death of his wife, to the purpose of erecting and maintaining a meetinghouse on the land conveyed by the deed before mentioned, but in case a meetinghouse should be built thereon before his decease, then the property is to be applied to the support and maintenance of such minister of the congregational denomination as may be settled in and over the church and society that shall worship in such house.

The attesting witnesses had executed a release of any interest supposed to be conferred on them by the will, and being sworn, one of them testified that he has lived in South Boston forty-five years ; that he owns real estate there ; that his children no longer go to school, but whether they had left off at the time of making the will, he could not recollect. Another testified that he lived in South Boston in 1813, and carried on business there, owning personal estate ; and that he now lives there and owns real estate there. The third testified that he lived there in 1813, and has ever since ; that he never owned real estate there, but that he has personal estate there; that a congregational society was formed there as many as ten years ago, and that he was a member of it several years, but had recently left it.

The society was incorporated on February 19th, 1818.

*Fletcher*and Lovering, for the appellant.

In the *St.*1783, c. 24, § 2, which requires that a will devising real estate shall ne attested by three credible witnesses, *credible*means *competent;*and they must be competent at the time of the attestation. *Holdfast*v. Dowsing, 2 Str. 1253 ; *Amory*v. *Fellowes,*5 Mass. R. 219 ; *Sears*v. Dillingham, 12 Mass. R. 358; *Cornwell*v. Isham, 1 Day, 35, note ; 3 Stark. Ev. 1690, note 2 ; *Hatfield*v. Thorp, 5 Barn. & Ald. 589.

A witness who takes under the will any beneficial interest, however small, is incompetent. *Butler*v. *Warren,*11 Johns. R. 57 ; *Rhodes*v. *Ainsworth,*2 Stark. R. 215 ; *Rex v. Buck**359*endge,*4 Mod. 48 ; *Lufkin*v. *Haskell,*3 Pick. 356 ; *Nason*v. *Thatcher,*7 Mass. R. 398 ; *Jacobson*v. *Fountain, 2*Johns. R. 170; Scott v. *M’Lellan, 2*Greenleaf, 205.

The witnesses in this case are directly interested, as *cestui que trusts*under the twenty-second, twenty-third and twenty-fourth clauses of the will

This disqualification is not removed by *St.*1792, c. 32, enabling a member of a “ town, district, precinct, or parish, or other religious incorporate society ” to be a witness in cases where “ the town &c. is a party,” for here the town &c. is not a party, nor are the witnesses interested “ as inhabitants or members of a town or other corporation.” *Lufkin*v. *Haskell,*3 Pick. 356. Nor can the provision of *St.*1783, *c.*24, § 11, avoiding the legacy to an attesting witness, operate in a case like this. *Holdfast*v. *Dowsen,*1 W. Bl. 14 ; *Wyndham*v. *Chetwynd,*ibid. 96, 98, and Elsley’s note *t.*

The interest is of such a nature that it cannot be released. *Jacobson*v. *Fountain, 2*Johns. R. 170.

The appellant’s counsel subsequently referred to the following authorities on the question of the inteiest in witnesses ; — 1 Phil. Ev. (6th ed.) 60, 61 ; *Regina*v. *Hornsey,*10 Mod. 150; *London*v. *Unfree Merchants,*2 Show. 146 ; *Sutton Coldfield*v. *Wilson,*1 Vern. 254 ; *Hockley v. Lamb,*1 Ld. Raym. 731 ; *Attorney General*v. *Wyburg,*1 P. Wms. 599 ; *Colchester*v. -, ibid. 595 ; *Brown*v. *London,*11 Mod. 225 ; *Hesketh*v. *Braddock, 3*Burr. 1856 ; *Rex v. Killerby,*10 East, 292 ; *Burton*v. *Hinde,*5 T. R. 174 ; *Watt's case,*Hardr. 331, and 3 Salk. 172; Evans’s note to *Smith*v. *Blackham,*1 Salk. 283.

*Sullivan*and *Aylwin,*for the appellees,

urged that if the witnesses had any interest, it was contingent; that it was not a pecuniary interest; that if they had a beneficial interest, it was rendered void by the statute of 1783 ; *Shaffer*v. *Corbet,*3 Har. & M‘Hen. 513 ; *Jackson*v. *Durland, 2*Johns. Cas. 314; *Jackson*v. Denniston, 4 Johns. R. 311 ; that the bequest was not in aid of public schools, but that supposing the taxes for the support of public schools would be diminished, in consequence of the devise, the witnesses were interested only as inhabitants of the city of Boston, and so were competent by *360virtue of the statute of 1792 ; that there are no parishes in Boston, and no man is obliged by iaw to support public worship there, and so the devise was not in ease of any duty in that respect; that the inhabitants of South Boston, not being a corporation, cannot collectively nor individually enforce the trust, and therefore the witnesses were not interested ; *Baptist Association*v. *Hart’s*Executors, 4 Wheat. 1 ; that the interest, if any, was too minute to disqualify the witnesses ; and that the release would remove any disqualification. They cited also *Nason*v. Thatcher, 7 Mass. R. 398 ; *Wells*v. Lane, 8 Johns, R. 462; *Cornwell*v. Isham, 1 Day, 35 ; *Barker*v *Wood,*9 Mass. R. 420.

At a subsequent day, *Fletcher*and *Lovering*argued that the will had been revoked ; and that this was a question to be determined by the probate court; that it was in fact the testator’s intention to settle his estate in bis lifetime ; and they produced evidence, that the testator’s wife died before him ; that most of the pecuniary legacies had lapsed or been paid by the testator in his lifetime ; and that he had conveyed by deed, to several of the devisees, the land devised to them respectively, taking in some instances a release of the devisee’s claim under the will. [In one deed produced, the devisee, in consideration of $ 300 received of the testator, released the devised estate “for the benefit of the testator and his residuary devisee.” In another deed, dated in 1824, the eight acres, devised in the twenty-second clause of the will, are conveyed to L. Capen, the minister of the congregational society, for his life, the remainder to go as in the will is provided.] They cited *Osgood*v. *Breed,*12 Mass. R. 525 ; *Minuse*v. *Cox,*5 Johns. Ch. R. 450 ; *Livingston*v. *Livingston,*3 Johns. Ch. R. 148 ; *Moore*v. *Smith,*5 Greenleaf, 490 ; *Carter*v. *Thomas,*4 Greenleaf, 341 ; 6 Cruise’s Dig. *tit.*38, *Devise, c.*6, *Of Revocation; Hughes*v. *Hughes’s Executor,*2 Munf. 226.

The counsel also suggested, that if the will should be proved, the probate should be special and limited ; since a general probate might materially affect the heirs of the testator, some of the devises, as they contended, being void as against the policy of the law. *Deane*v. *Littlefield,*1 Pick. 239 ; *Billinghurst**361v. *Vickers,*1 Phillim. 187 ; *Tappenden*v. *Walsh,*ib.d. 354 ; *Wood*v *Wood,*ibid. 357.

*Sullivan*and *Ay twin, contra,*

said the attention of the Court, as a court of probate, must be confined to the questions, whether the testator was of capacity to make the will, whether the will was duly executed, and whether it has been totally revoked by an instrument of revocation pursuant to our statute of 1783. 2 Swinb. (by Powell) 807, *pt.*6, § 14 ; *Tappenden*v. *Walsh,*1 Phillim. 353 ; *Smith*v. *Cunningham,*1 Addams, 418 ; *Archer*v. *Wosse,*2 Vern. 8 ; *Nelson*v. *Oldfield,*ibid. 76 ; *Sheffield*v. *D. of Buckinghamshire,*1 Atk. 630 ; *Taylor*v. *Diplock,*2 Phillim. 268 ; *Parsons*v. *Freeman,*3 Atk. 748 ; *Coates v. Hughes,*3 Binney, 498 ; *Wogan*v. *Small,*11 Serg. & Rawle, 141 .*

*

 The following decision was made by the Supreme Court of Probate, at Taunton, October term 1794 ; present, Dana, chief justice, and Paine, *Sumner,*JV. *Cushing*and Dawes, justices.

Zebedee Terry *et al.*Appellants, *versus*N. Edminster, Executor.

Appeal from the decree of Padelford, judge of probate* for the county of Bristol, granting the probate of the will of Abiel Terry. It appeared that after the making of the will, part of the land devised to the appllants (the son • and grandson) was alienated by the testator. The probate was contested on the ground that the conveyance affected a revocation *in toto.*The appellee contended that no alteration in the estate or of the circumstances of the devisor, excepting subsequent marriage and issue, worked a revocation. The *Court*held, that the authorities respecting revocation by a conveyance made after the will, extended only to the property actually conveyed, and not to the whole will; and the decree of the judge of probate was affirmed. Viner, Denise, *R*6,

*D. L.*Barnes, for the appellants; *J.*Davis, for the appellee.

Wilde J.

delivered the opinion of the Court. This case comes before us on an appeal from a decree of the judge of probate, and the general question to be decided is, whether the will of John Hawes has been duly proved, or whether it ought to be disallowed for the reasons urged by the counsel for the appellant.

The first and principal objection is, that the will was not attested by three credible witnesses, as required by the statute.

The attesting witnesses were inhabitants of South Boston at the time of attestation, and it is contended that they were inter*362ested in the disposition made of the testator’s estate by the W1^ *n question, and so were not credible, within the true mean ing of the statute.

By the provisions of the will, a large real and personal estate is given to trustees for the use and benefit of the inhabitants oL South Boston ; one moiety of the income and proceeds of which is to be applied to the support and maintenance of the gospel ministry of the congregational denomination in South Boston ; and the other moiety to be appropriated to the purpose of establishing a public school in the same place.

That a witness not competent, by reason of interest or otherwise, is not credible within the true meaning of the statute, cannot now be controverted ; but at what time the witnesses to a will are to be competent, is a question which has been much litigated, and has given rise to conflicting opinions.1

In the case of *Wyndham*v. *Chetwynd,*1 Burr. 414, Lord *Mansfield*maintains, that if the witnesses are competent at the time of the probate of the will, it is sufficient. While Lord *Camden*held, in the case of *Hindson*v. Kersey, 4 Burn’s Ec. Law, 88, that the witness must be competent at the time of the attestation, because the statute directs the mode of executing and attesting a will, and not the method of proving those facts in a court of justice ; and therefore that the quality of credibility is necessarily requisite in the witnesses at the time of attestation. Both opinions are respectively supported ny other decisions, and it may be difficult perhaps to determine on which side the weight of authority preponderates. But it appears to me that the opinion of Lord *Camden*is sustained by the more convincing and consistent reasoning, and is more conformable to the language and apparent intention of the statute.

*363The object of the statute was to prevent frauds as well as perjuries. Wills are frequently made by a testator *in*extremis, or when he is greatly debilitated by age or infirmity, when frauds may be practised upon him with facility by the crafty and designing ; and it was the intention of the statute to guard against such practices, and to protect the testator by surrounding him with disinterested witnesses at the critical and important moment when he is about to execute his will. They are to be disinterested and credible also, at the time of attestation, because in some sense they are made the judges of the testator’s sanity. It is their duty to inquire into this matter, and if they think the testator not capable, they should remonstrate and refuse their attestation.

There is another important reason for referring the credibility of the witnesses to the time of attestation, rather than to the time of the probate of the will; for if the statute is to be understood as referring to the latter period, it would follow that a will attested by unexceptionable witnesses, could not be proved, if the witnesses, after the attestation and before the probate, should become insane, infamous, or otherwise disqualified ; which would be opposed to the current of the authorities ; for I take it to be well settled, that in such cases the handwriting of the witnesses may be proved, and the will be thereupon allowed.

Besides, it is unreasonable to suppose that it was the intention of the statute to establish a mode for the execution and attestation of wills, which might be thus rendered ineffectual by subsequent events over which the testator could have no control.

It is however unnecessary to discuss this question more fully, for if any beneficial interest passed to the witnesses by virtue of the will, it was not of a nature to be extinguished by their release; so that if they were incompetent at the time of the attestation, they are equally so at the present time.

The question then is, whether the witnesses were competent at the time of attestation.

An interest to disqualify a witness must be a present vested interest, and not uncertain and contingent. And where the nterest is of a doubtful nature, the objection goes to the credit, *364and not to the competency of the witness. This is the rule as Lid down by Starkie, and it is supported by the cases to which he refers. 4 Stark. Ev. 745. The interest must be pecuniary, or such as directly or indirectly affects property, and such an interest, however minute, will disqualify a witness; while other interests or influences, although they be of a nature to cause a more powerful bias, will only affect his credibility. Such is the influence arising from the relation of parent and child, and that of other near connexions. The heir apparent to an estate is competent to testify in support of the claim of his ancestor, however certain and immediate the witness’s expectation may be of inheriting the estate. In this, and in many other like cases where the bias may be strong, the witness is nevertheless admissible, and the objection only goes to his credit.

- The question, therefore, is, whether the attesting witnesses, at the time of attestation, had any certain interest under the provisions of this will; and we think they had not. Whatever interest they had, was contingent. It is true that all legacies and testamentary dispositions are in some respects contingent, but here the contingency was remote and was not determinable by the death of the testator, a life estate being given to the testator’s wife, and the estate to the trustees was not to vest in possession in them until her decease. The interest of the witnesses was also contingent in another respect. The will provides for the support and maintenance of the gospel ministry in the first congregational church and society which might be incorporated and regularly organized in South Boston. At the time of the attestation, no such church or society had been incorporated or organized ; it was uncertain whether it ever would be; and still more uncertain whether the witnesses would become members, should such a church and society be organized.

In the second place, we hold, that if the interest of the witnesses was not contingent, still it was not of a nature to affect their competency. The privilege of attending public worship, and the advantages of education, although of the highest importance, do not constitute such an interest as will disqualify a witness ; not even when the establishment of institutions for *365these purposes may raise the value of the witness’s property. Such a consequential benefit will only affect the credibility of a witness. So as to private establishments, such as factories and the like, which may increase the trade and wealth of a town, or the demand for labor; these must necessarily be more or less beneficial to the inhabitants of the place in which they are situated ; yet it cannot be doubted that such inhabitants would be competent witnesses in a case, upon the determination of which the erection or continuance .of such an establishment might depend. Such consequential advantages derived from public or private establishments, or the general improvement of the country, are not regarded as interests affecting the competency of witnesses.

And this case does not come within the class of cases in which witnesses have been excluded because the event of the cause might relieve them from a tax or burden on their estates In the city of Boston, no general tax is assessed for the maintenance of the ministry. But each church and society raises the necessary funds for this purpose by a tax on the members of the society or on the pews ; and no one is compellable to join any religious society ; so that the payment of taxes for the support of public worship is altogether voluntary. Public schools, however, are supported by a general tax on the inhabitants. But we do not know, nor can it be ascertained, that the donation in question will have the effect of reducing the school tax. The number of schools may be increased, and the means of education enlarged, but this does not affect the competency of the witnesses.

In the case of *Hindson*v. Kersey, before cited, the testator had devised certain lands to trustees, to be applied to the use of the poor, who by reason of infancy, impotence, or old age, were unable to work, and to place out as apprentices the children of such poor. The witnesses who attested the will were seised of lands in fee within the parish at the time of attestation. It was decided by a majority of the court, that the witnesses were credible and the will duly attested.

Lord *Camden*dissented on this point, as well as on that already noticed, on the ground that the benefaction would °of necessity diminish the parish taxes for the relief of the poor. *366By the 43 *Eliz.*c. 2, the parish are only taxable for the *ner.essary*re^’ef °f the poor. If the tax, therefore, should continue the same, it would exceed that sum, when added to the charity, which would be necessary for their relief; which would be illegal This was the ground of Lord *Camden’s*very able opinion in that case. But it fails in the present case, which more resembles the case of *Cornwell*v. Isham, 1 Day, 35. That however was a stronger case of interest than the present, as the donation there was directly to the inhabitants of the society of which the witnesses were members, and was to be managed according to the direction of the inhabitants. In the present case the donation was to trustees, to be appropriated and managed by them under the directions of the will. I do not, however, consider this difference as very material. In that case, as in this, the donation was for the purpose of maintaining a public school; and the witnesses were inhabitants of the parish, and resided near the place where the school was to be képt, possessed large estates, and had minor children to educate. That case was fully argued by able counsel, and the court decided that the witnesses were credible and the will duly attested. It was said in that case, “ that all the cases there cited, in which the witnesses were deemed incompetent on the ground of interest,” were discharged from the payment of rates or taxes, or relieved from other burdens. And this I apprehend is the settled distinction upon which all the cases on this point will be found to depend. No expected participation of the benefits of a public benefaction not affecting property, has ever been held a valid objection against the competency of a witness. It is clear, therefore, that unless the witnesses are to be relieved frdm their taxes by this donation, they are competent. It is possible, though not probable, that they may be thus relieved, but neither possibilities nor even probabilities are sufficient to disqualify a witness. As to ministerial taxes, they are paid voluntarily, or rather the liability to pay them is voluntarily assumed, and may at will be terminated. And as to school taxes, it does not appear, nor is it probable, that they have been, or ever will be diminished by this donation. By improving the means of education, the witnesses’ children and their posterity may be benefited ; but this confers no interest on the *367witnesses. If the whole estate had been given absolutely to their children, still the witnesses would be competent.

For these reasons we are of opinion that the will was duly attested. The witnesses are competent, and therefore credible within the meaning of the statute ;1 for I think it clear, that the word “ credible ” is used in the statute in the abstract sense as denoting persons capable of obtaining credit. Now every person who is allowed to give testimony in a court of justice may be believed ; otherwise it would be absurd to allow him to testify. His testimony may or may not be believed ; but this cannot be ascertained at the time of the attestation. It follows, therefore, that all competent witnesses are credible, within the true intent of the statute.

The other objections to the probate of the will clearly cannot be sustained. It has been argued that there had been an implied revocation of the will, the testator, in his lifetime, and subsequently to the making of his will, having conveyed by deed a part of the estates devised.

To the extent of these conveyances there is a revocation *pro tanto,*but no more. In order to- defeat altogether a testamentary disposition, there must be a subsequent conveyance of the whole estate. If the conveyance be a of a part only, it will only amount to a revocation *pro tanto.*Toller, 19. If A., therefore, devise all his real estate to B., and afterwards, on B.’s marriage, settle upon her a part of such estate, in respect to the remaining part of it the will shall operate. *Clarke v. Berkeley,*2 Vern. 720. So if A. devise land to B. in fee, and afterwards grant a lease to C. for a term of years to commence after A.’s death, or mortgages the land in fee, the devise, subject to the lease or mortgage, shall continue good. *Coke*v. *Bullock,*Cro. Jac. 49 ; 1 Roll. Abr. 616 ; *Harkness v. Bayley,*Prec. Ch. 515 ; *Tucker*v. *Thurston,*17 Ves. 134.

In the present case there is not a single circumstance from which it can be reasonably inferred that the testator had any intention to revoke his will *in toto ;*but quite the contrary. Generally the legacies were paid and the conveyances made *368according to the provisions of the will; and in some cases releases were taken from the grantees of their right and title under the will ; which shows conclusively that the testator intended the will should stand good, subject to the alterations.

Then it is contended that the devise to the trustees is void on various grounds. But this question is not examinable by us sitting as the Supreme Court of Probate. The construction of the will, and the validity and effect of its various provisions, are to be determined by a court of common law jurisdiction.

The probate of a will does not affect the validity or invalidity of any particular clause in the. will. This is not the case, therefore, in which a limited probate is necessary, the proof being sufficient to establish the will as it respects the real as well as the personal estate.

*Decree of the judge of probate affirmed.*

1

 By the Revised Statutes it is enacted that no will, excepting, &c. shall be effectual, &c. unless it be in writing, &c. and attested and subscribed in the presence of the testator, by three or more *competent*witnesses; and if the witnesses are competent *at the time of attesting*the execution of the will, Iheit subsequent incompetency, from whatever cause it may arise, shall not prevent the probate ana allowance of the will, if it be otherwise satisfactorily proved Revised Stat. 62, § 6. See 2 Stark Ev. (5th Am. ed.) 921 ei *seq.*

1

 See *Bacon*v. Bacon,17 Pick. 135; Revised Slat. c. 62, § 6.