Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1859-11-26

475-4S7-8-9 :. 'iu
Here. then are the two subscribing witnesses. an
neither Of them IS interested IN the deUiss Of ana Of b
lands an ne oil The act does not say that no wi
shall be good to pass any estate IN lands nless II
subscribed by two witnesses neither of which shal
be Interested IN any gift IN the same instcnee
| no such thing. And nothing Of the kind was in
tended. That was left to the common law. The fac
that Elizabeth Walker in the case Of an iufsstaes q
her father, might be one Of his heirs and distribu
tees, did not destroy the qualification under the AZ
as witness to his Will This is decided in Alien 50
Allen, I'd Tenn, l72. Neither did the fact that shs
had legacies of personal estate under the same will
This position Is embraced by the reasoning in the
| same authority The question came directly IN in
! Winaut's Heirs vs.. Winaut's Devisees. l Muruby
/ 148 The case as reported is as follows:
/ "The testatrix, Penelope Winaut duly published
her last viii and testament in writing in the pres
enee of James Ward and Margaret Houghton, the
only subscribing witnesses thereto, in which was
contained the following clause, to-xit: 4 give and
beQueath unto Margaret Houghton one wooden
wheel, one white round table, all my chairs and six
months to live in the house if she chooses MarQa-
ret Houghton was one of the subscribing witnesses
to the will, and the question referred to this csurt
was whether the said Margaret was competent to
prove the will as TO the real estateS
by the Court The devise to the witness Mar
garet Houghton, of permission to stay six months
IN the house, if she chooses conveys 10 her 10 t1te
cIteI 10 Ine mouse OF ia0u anu tue VIII her sufiil
cleny proven as to the personal estate of the other
witness there appears to be no such interest in
HogghtGn, as to 'destroyher competency as A wit
ness, to prove the win for the lands"
To the same effect is the doctrine of Tucker Va
Tucker, lrd; l6l. And the position is fortified by
Aliison vs. Allison, Hawks. l4l Daniel Proc
tor, Dey. 42s; Old vs.. Old, Dew. 500 and Ma
theWs Va. Aarchart, Dew. and Bott 40.
We are to remember too, that where viii dis
poses Of both real and personal estate far the
attestatlon OF the subscribing witnesses is concerned
1t nay be good as to the species Of property and
not as to the other. Tucker vs.. Tucker Ird I6I.
We have said that Elizabeth Walker was not inter-
eSted IN tie deciSe Of any Of the lands IN this lciH for
the words, provided they the said John Walker and
James E. Walker, support their sister. Elizabeth
Walker, so long as she remains single" used in the
4th clause of the will in reference to the land there
given them by the testator, create, in her. estate
or interest Her support is simply personal ekdrqs
on the deVisees, John and James E. Walker, in res
pect Of the estate in their hands, They take the es-
tate on condition of Fayng the charge and if they
had died in the lifetime of the testatOP the charge
would have ceased and if they refuse to accept
and perform, the devise is void and the heir may
enter There IS no charge upon the estate. jackson
VS.. Bull, 10 Johns. K. I49 jackson VS.. Martin Is
Johns. Rep. 32-37,
We have been referred to the case of Goss' heirs
VS.. GOss' executors, Hum, 27S as an authority in
support of the judgment of the Circuit Court.
But it Is manifest that case can have no appHca-
llOn mere. DaPlu NTOSS, Lle NlIneSS Llefe. was
neither heir distributee in the supposed tes
tators estate and did not come to testify against
his interest or in the case of balanced interest
He was legatee under the will, and attesting
witness to the codicil; and in effect was examined
in support of both the hsTS at qle and distributes, and
was, therefore, an interested witness ard inadmiss
bic upon common law principles unless that inter
est were, in some proper was, removed which was
not done or attempted. No question was made
upon the act of l7S4 and none could have been
made; for the witness was not interested IN the dUSe
of the lands, the gift to him being merely legacy
of personal estate
If is not intended and we do not decide as to the
qualification of a witness, under the act of 1874 to
attest will where he takes interest IN the aeuSs
of the lands under it, which is neutralized over
balanced by contrary interest Of equal. great
value in the estate in case of an iptestacy, or
from other cause, At common law, in such a case,
we have seen the witness would be incompetent
But it may not be under the act of 1884; and
it is not necessary here do not dispose Of the
question. Allen VS.. Allen, 2 Tenn, 1871.
We are therefore, of the opinion that Elizabeth
Walker vas competent witness to the will, pnder
the act of l764 and that upon proving the facts
proposed to be established, but which were reject
ed by the Circuit Court, she may very well testify
as a witness to the will.
The Judgment of the Circuit Court viii be re
versed, and the cause remanded for another
trial WRIGHF
A true copy. Test: c. ". NELSON, Clerk.