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![handle is hein.slavery/ssactsengr1012 and id is 1 raw text is: NOTES OF CASES IN K. B. ETC.
WYNDHAM, ESQ., AND OTHERS, agi. CHETWYND, ESQ., AND OTHERs.-K. B. Mich.
Term, 31 G. II., 1757. A will directing, that land should be charged for pay-
ment of debts, is sufficiently attested by three persons having claims upon the
devisor's personal estate; where that alone was more than adequate to the
amount of their demands, and their interest under the will, satisfied before they
were called to prove it. 1 Burr. 414, S. C.
Sir Richard Lloyd, in support of the will.
The sole question is, on the meaning of the word credible in the Statute of Frauds,
the attestation being agreed to be perfectly right in every other part.
[122] I apprehend, the Legislature never meant to use that word in the strict,
and particular manner which the other side must contend for, but in such a general,
common signification of the word as might be understood by every plain, illiterate,
freeholder in the kingdom; for men's properties are not to be suffered to hang upon
cobweb, metaphysical, reasoning, nor are words used by the Legislature on such
occasions, to be tortured into a meaning which nothing but the greatest degree of
critical nicety can construe them to signify.
There are infinite degrees of credibility, from any thing below demonstration, quite
down to impossibility. There are some omni suspicione majores: others whose
characters are not so universally free from exception, yet worthy of credit; and,
certainly, the Legislature did not mean to confine it to the former only.
I think, verily, the Legislature meant to refer the credit to that period of time
only when the witness gave his evidence, and not to the time of the attestation, when
there was nobody to credit, or discredit, him but his own heart; and I defy the
subtilty of the gentlemen on the other side, to produce a case where the question
touching competency has not been always referred to the time of examination.
But, to consider it also at the time of attestation.
The competency of a witness is to be tried by this question, whether he will
certainly gain, or lose, by the case going one particular way ? and, therefore, if it be
but a possibility, or even a probability, he remains competent. As for instance:
[123] A second son is a good witness to a deed giving an estate, to the father for
life, remainder to the first son, and his heirs.
To a will devising land to pay poor's rates, a man may be a witness, though he
may possibly become a parishioner.
So may a trustee, or mere executor, the residue being given from him.
Obligee by will forgives the obligor the debt, and the executor accordingly delivers
up to him the obligation, and after this the validity of the will is contested, the
obligor may be a witness.
Try the present case by these rules, and, manifestly, the credit of the witnesses is
not impeachable.
The reasons given by the civil, and Roman, lawyers, and from them transplanted
into our reports, why the credit should refer to the time of attestation, are, because
the witnesses are a kind of a guard over the testator, to prevent his being imposed
upon: yet this is to be considered sub modo: for a man may possibly be interested,
or affected by the will, and yet remain competent, viz. if he knows nothing of it at
the time, for then he is under no bias, or temptation ; and here it is not found, that
either of the witnesses knew of this clause, subjecting his real estate to his debts, at
the time of the attestation. And in Just. Inst. lib. 2, tit. 10, § 7, where having
spoken before of slaves, and others being incompetent witnesses, yet he says, if one
supposed free at the time he attested the will, afterwards proves not to have been in
fact well emanci-[124]-pated, he shall, notwithstanding that, be a competent witness
to establish the will.
Now here it is not found, that any of the witnesses knew of this clause in the
will; and the Court can intend nothing on a special verdict; and if they did not,
they were under no bias.
At the examination, they had none of them any interest in establishing the will.
The case of Ansley (a) and Dowsing, relates not to the present question : there the
witness continued a creditor to the time of his being examined; and whether the
Court did, in that case, determine, that the point of time from which to judge of
(a) Str. 1253. 1 Bl. 8, S. C.
1128
2 KENY. 122.](ViewImageLocal?handle=hein.slavery/ssactsengr1012&div=1&collection=&method=preview&ext=.png&size=3)