burrow Windham esquire versus chetwynd esquire Friday that November a will of  land attest by three interest witness good SC black bull pasch g Rotlo a  special verdict upon a will of land date the that of may and a codicil of the  same date make by Walter chetwynd late of Grendon Esq the special verdictat  which day before our lord the king at Westminster come as well the say William  Wyndham Malachi London Catherine London Thomas Stephens alias Walter parish  alias Walter chetwynd Susannah Blachnell Henry Perrot George Huddleston and  James Crofts by their attorney as the say William Henry chetwynd by his  attorney and the juror c be summon c do come c and be elect c do find as to  the first issue join between the say party that the say Walter chetwynd be at  the time of make the say write import to be his last will and codicil of sound  mind as to t e three issue they find that the testator do not by the say write  import to be his last will devise to the aforesaid William Wyndham and his  heir any land or tenement in the county of Warwick in trust or for the benefit  of the say Thomas Stephens alias Walter parish alias Walter chetwynd and as to  the four issue the jury find that the testator do not by the say write import  to be his last will devise to the say Catherine now Catherine London the wife  of the say Malachi London a annuity of by the year for the term of her natural  life and as to the second issue the jury find that the testator be in his  lifetime seize in fee of certain land tenement c in the several county of  Warwick and Stafford of the yearly value of and be so thereof seize he the say  Walter chetwynd in his lifetime sign seal and publish a certain paperwriting  bear date the that of may purport to be his last will and testament and  likewise another paperwriting purport to be a codicil endorse on the say  firstmentioned paperwriting and of burrow er p the same date which will and  codicil it set out in haec word and in the former there be a charge upon the  residue of his real and personal estate for the payment of all his just debt  legacy and encumbrance and that the say paperwritings be so sign c by the say  Walter chetwynd in the presence of Stafford squire Robert Baxter and Josiah  Higden who likewise attest the same at his request in his presence and in the  presence of each other and they further find that the say Stafford squire and  Robert Baxter be atorneys at law be in or about the year employ by the say  waiter chetwynd to solicit a private Act of parliament burrow for sale of the  estate late of Henry Fleetwood Esq decease in the county of Lancaster for  raise money to discharge encumbrance affect the same c and that the say  Stafford squire and Robert Baxter charge the say Walter chetwynd debtor in  their book for the fee and expense of pass the say Act and which charge  continue so until and after the death of the say waiter chetwynd and that at  the same time of the say sign seal and publish of the say several  paperwritings and also at the time of the death of the say waiter chetwynd  there be due and owe to the say S S and r b for the say business do the sum of  and that some time after the death of the say Walter chetwynd the say S S and  r b deliver a bill for pass the say Act to the trustee nominate and appoint in  and by the say Act of parliament for the purpose therein mention and afterward  and before the examination of the say S S and r b in this cause the say S S  and r b receive from the say trustee at several different time several sum  amount in the whole to S d and that the say trustee be Willing to have pay the  remainder if it have not be for a miscalculation and the jury further find  that in the say private Act of parliament there be contain a certain clause  for payment of the expense attend the say bill which clause the find in haec  word they further find that at the time of the sign seal publish and attest  the say paperwritings there be a current account open and subsist between the  say S S and r b and the say Walter chetwynd for other business exclusive of  the expense of pass the say private Act on the balance of which account if  state at that time the say S S and r b be indebt to the say Walter chetwynd in  the sum of S d they further find that at the say time of the attest of the say  write and also at the time of the death of the say waiter chetwynd there be  due and owe from he to the say Josiah Higden his apothecary the sum of S d on  simple contract eleven pound whereof be so due oh that December and before the  last sickness of the say waiter chetwynd they also find that the say waiter  chetwynd die on the that of may without issue and seize c and that the say  William Henry chetwynd be the only brother and heir at law of the say Walter  chetwynd they further find that his real estate at the time of sign c and also  at the time of his death be subject to certain mortgage make thereof by the  say waiter chetwynd to the amount of and of more make by the say Walter  Chetwynds late father and that the say waiter chetwynd owe at the time of his  death by bind the sum of and by simple contract and that his personal estate  then amount to and be sufficient to pay burrow all the simple contract debt  and bind debt of the say waiter chetwynd and that the several real estate so  in mortgage be of value more than sufficient to satisfy the several  encumbrance affect the same the jury further find that on the d of August the  say William Henry chetwynd file his bill in chancery against the say William  Windham c for the obtain a decree and recovery of the say land c and thereby  contest the validity and due execution of the say paperwritings that answer be  put in and amendment make to the bill and other answer put in and the say  William Henry chetwynd prosecute the say suit in chancery with all due  diligence the jury further find that the say William Windham as executor of  the say Walter chetwynd pay to the say Josiah Higden the say sum of S d after  the death of the say Walter chetwynd and before the examination of the say  Josiah Higden in this cause and that the say I h have not at the time of his  examination in this cause any demand upon the say waiter chetwynd but whether  upon the whole matter aforesaid by the juror in form aforesaid find the say  paperwritings or either of they be or be duly execute by the say Walter  chetwynd so as to pass land or tenement or not the say juror be whole ignorant  and therefore pray the advice c c burrow er p this case be argue twice first  onFriday the six of may last by sir Richard Lloyd for the plaintiff and Mr  Clayton for the defendant and again on Friday the that instant by Mr sergeant  prime for the plaintiff and Mr Norton for the defendant the principal  objection insist upon by the counsel for the defendant be that the subscribe  witness to the will be not at the time of their attestation credible witness  and consequent this be not a good will of land within the statute of c c for  prevention of fraud and perjury as not be attest by three credible witness in  proof of which they urge many argument and reason from several case and among  other they cite two case as in point videlicet Hilliard v Jennings report in  ld raym comens Carthew and case in b r tempt W page and holdfast ex dim Anstey  et ux v dowsing in strange but it will be unnecessary to prefix either the  argument of the counsel or the authority upon which they rely as Lord  Mansfield enter into the case so very minutely in deliver the opinion of the  court upon it after the court have take some time to consider of it they all  agree that the will be duly attest by three credible witness and now burrow  Lord Mansfield deliver the opinion of the court to the follow effect the doubt  make by this special verdict spring after the cause of Anstey v dowsing out of  the general question then much agitate whether a benefit give to a subscribe  witness by the will either under a general or particular description shall  annul his attestation as at the time of his subscribe and make the will whole  and absolute void for want of form as much as if he have never attest at all  though at or after the testator death he may be disinterest and competent to  be examine in support of the will this general point be the basis of the  objection to these subscribe witness unless the defendant can support it he  have no ground to stand upon but though he shall succeed in the general  proposition the application to this case way fail from the particular  circumstance and the kind of benefit object the question do not depend upon  the construction of any word of the statute the statute be silent as to the  capacity of the witness it declare no incapacity it require no qualification  the epithet credible have a clear precise meaning it be not a term of art  appropriate only to legal notion but have a signification universal receive it  be never use as synonymous to competent when apply to testimony it presuppose  the evidence give after the competence of a witness be allow the consideration  of his credibility arise and not before person undoubted credible can be  witness under particular circumstance person manifest incredible may be and  often be witness in act of parliament which direct conviction upon the oath of  witness the epithet credible be add but by no mean intend to signify competent  that be imply in the term witness but it be intend from abundant caution to  declare that though competent witness swear positive their credibility be to  be weigh and if the magistrate think the evidence not credible he ought not to  convict in this sense it be very unnecessary to add the epithet here to  subscribe witness and yet to make the essential solemnity of the will depend  upon the credibilityof the subscribe witness be so absurd that their  credibility have always be hold to make no part of the necessary form burrow  if they all swear that the testator do not execute if they have at the time  the worst character and have commit the most infamous action yet their  attestation answer the necessary form because the testator mean to comply with  the law and may not know they to be bad man the d rule or caution in make will  give at the end of butler and baker case be at the time of the publication of  the will call credible witness to subscribe their name to it Lord coke certain  mean person of credit and character see a short summary of they in dr burn  ecclesiastical law pa   b burrow er p from hence and from the usage in Penal  act direct conviction I be persuade that the epithet be insert here as a word  of course and misapply have the operation or effect of the word in this  particular case be attend to it never can have be insert because in the  natural and obvious sense the meaning must be reject from the consequence it  will have and in any other it have no meaning at all for suppose it to signify  competent competence be imply in the term witness this whole clause which  introduce a positive solemnity to be observe not by the learned only but by  the unlearned at a time when they be suppose to be without legal advice in a  matter which great interest every proprietor of land where the direction shall  be plain to the mean capacity be so lose that there be not a single branch of  the solemnity define or describe with sufficient certainty to convey the same  idea to the great capacity there have be litigation and contradictory opinion  upon almost every part of the form as what be sign by the testator whether the  witness be to attest to make one context to make one eodemq tempore whether  they be to see the testator sign whether they ought to know that he sign it as  his will whether he ought to publish it as his will a very little precision  and a very few word may have prevent all these question in a clause not the  most accurate I can easy believe that the usual epithet credible slip in as of  course without attention to the impropriety of use it on this occasion it have  be say that this Act of c c be draw by ld Ch I hale but this be scarce  probable it be not pass till after his death and it be bring in in the common  way and not upon any reference to the judge burrow but what sense soever be  put upon this word credible the statute leaves the question just as it be for  it do not declare who be or be not credible or if it be suppose to mean  competent who be competent or who be incompetent their competence can not be  refer to any law then establish because there be there can be none applicable  throughout to this new case the necessity of subscribe witness to any  instrument never have exist before in this country there never can have arise  in the law of England a question concern the competence of a witness at the  time of his know the fact he come to testify but only whether he be competent  at the time of his examination the time of examination can not possible he the  criterion upon which the validity of the will be to depend the witness may not  live to be examine their incompetence to be examine may arise long after their  attestation what objection therefore to the subscribe witness shall be  sufficient to avoid a will as informal be leave to be judge if as case shall  arise by general principle by analogy to the law of witness in other instance  and by argument draw from the nature and fitness of the thing with regard to  justice convenience and the intent of the statute when solemn determination  acquiesce under have settle precise case and become a rule of property they  ought for the sake of certainty to be observe as if they have original make a  part of the text of the statute I will therefore consider the general question  in two view saint suppose there have be no judicial determination relative to  the capacity of subscribe witness since the statute dly upon the foot of the  judicial determination that have be sinw the statute and dly in the last place  I will consider the particular case now in judgement under all its own  circumstance FirstConsidering the matter at large let I observe that the power  of devise ought to be favour it be a natural consequence of property and the  right a man have over his own it be a right by the law of the land before the  Conquest and down to about the time of burrow Henry the dit cease  consequential only by the introduction of feodal tenor because original every  species of alienation be contrary to that system as soon as the power of  alienation inter live be indulge testament follow indirect as declaration of  use burrow er p the statute of use accidental check this form of devise  therefore the statute of will be make the car c which give a rise to the  present question do not mean to restrain testamentary disposition of land the  reason to encourage that power be increase the policy of tenor from whence  arise the impediment to will be abolish but have leave many consequence remain  which make testamentary disposition of land more reasonable than they be among  the Greek and Roman or here before the conquest the old son only be heir ab  having made no will among collateral not all the next of kin but one often be  heir to the exclusion of many in the same and many in a near degree simple  contract creditor have no right to be pay their debt money invest in land can  not be trace much land be in trust where the widow have no right to dower in  personal estate the succession ab having made no will be subject to all debt  and govern by natural family equity in real estate the succession be govern by  political consequence of a positive system which make the testamentary power  often necessary to enable a man to do justice to his family and his creditor  the legislature mean only to guard against fraud by a solemn attestation which  they think will soon be universal know and may very easy be comply with in  theory this attestation may seem a strong guard it may be some guard in  practice but I be persuade many more fair will have be overturn for want of  the form than fraudulent have be prevent by introduce it I have have a good  deal of experience at the delegate and hardly recollect a case of a forge or  fraudulent will where it have not be solemnly attest I have hear eminent  civilian who be dead and some now live make the same observation burrow  suppose the subscribe witness honest how little need they know they do not  know the content they need not be together they need not see the testator sign  if he acknowledge his hand it be sufficient they need not know it to be a will  if he deliver it as a deed it be sufficient for these and many more reason it  be clear that judge shall lean against objection to the formality they have  always do so in every construction upon the word of the statute a strong ought  they to do so in raise a consequential system not prescribe in word and still  more ought they to do so if that system will spread a snare in which many  honest will must avoidable be entangle and be no preservative against fraud at  the time this Act be make the law reject no witness to prove a will unless at  the time of his examination his testimony tend to support his own title and  enable himself to hold or recover a interest under it in the ecclesiastical  court the probate be conclusive to every body as to every part if a legatee  come to prove it he entitle himself to his legacy but if the legacy be  contingent and at the testator death can not take effect if he have the same  or a great interest though the will shall be set aside he be a witness a  release payment or tender make he a witness in the court of commonlaw where  the witness have a charge upon land devise to another he be just in the case  of a personal legatee if he have as great a interest the other way if his  interest at the testator death can never take effect if there be a release of  which several authority be cite and I will add as by necessary consequence if  thereas payment or tender he be a witness nice objection of a remote interest  which can not be pay or release though they hold in other case be not allow to  disqualify a witness in the case of a will as parishioner may prove a devise  to the use of the poor of the parish for ever before the statute no man can in  a court of justice entitle himself by his own examination to a devise so after  the statute no man shall entitle himself in a court of justice to a devise by  virtue of his own subscription which at the time of subscribe he can not have  prove by his examination V side m townsend v row burrow er p burrow the  disability of a witness from interest be very different from a positive  incapacity if a deed must be acknowledge before a judge or notary public every  other person be under a positive incapacity to authenticate it but objection  of interest be deduction from natural reason and proceed upon a presumption of  too great a bias in the mind of the witness and the public utility of reject  partial testimony presumption stand no long than till the contrary be prove  the presumption of bias may be take off by show the witness have as great or a  great interest the other way or that he have give it up the presumption of  public utility may be answer by show that it will be very inconvenient under  the particular circumstance not to receive such testimony therefore from  necessity the course of business and other reason of expedience numberless  exception be allow to the general rule the presumption of bias arise as at the  time of subscribe but it may be answer if part be devise to a subscribe  witness the presumption be answer by show he be heir at law or that the devise  be void or that he have renounce it where be the reason to say that a witness  who do not know the content of a will during the testator life and at his  death take no benefit be bias at the time he subscribe or can be bias at the  time of his examination during the life of a testator devise be mere  possibility no interest can vest till his death the presumption of bias from  the possibility be answer by the fact when it become a interest his swear when  he be total disinterest be conclusive that the possibility be not to be  presume the corrupt cause of his subscribe for the sake of three person it be  wise and just to allow the objection thus to be purge otherwise many  settlement by will must be overturn to the ruin of family it be natural and  usual to give legacy to servant and token to friend person under these  description be most like to be witness Ought such trifle to overturn avoidable  the most deliberate disposition of the great estate which may be attend often  with this family distress that a man may have give his money to one part of  this family and his land to another in which case the will will be good as to  the money and void burrow as to the land if the legislature have say so that  will have be a positive rule but it be contend for by construction and to  guard against fraud it be no guard even in theory in the case of legatee  because they may in another shape attest the devise which charge the land with  their legacy it be settle that where the land be once charge and it always be  a auxiliary fund with the payment of legacy by a solemn devise the legacy may  be give alter or revoke by a subsequent will unattested the fraudulent legatee  may attest the charge and get his legacy in a codicil unattested let a will be  ever so fair a slip in form be fatal which be a certain mischief but if a will  be fraudulent though it be allow to be formal it may be set aside upon  evidence and circumstance neither reason nor policy require the objection to  be carry far than I have lie it down agreeable to the law before the statute  and the universal maxim testis in not common with others causan non be to hold  toward but if judicial determination acquiesce under and become a rule of  property since the statute have extend the incapacity further they must be  adhere to which bring I second to consider the judicial determination since  the statute all the determination agree exact with these principle in man  instance the presumption of bias from a legacy at the time of subscribe have  be allow to be take off by a release authority in print have be cite to show  this be consider as a settle point and I very believe it be so from the  authority of the old and most eminent practiser in westminsterhall and  therefore give credit to the dictum of powys in viner that it have be solemnly  agree by the judge that where a person have a legacy give and do release it he  be a good witness to prove the will I know that before the case of Anstey v  dowsing a will burrow of a very great estate be liable to the objection and  the heir at law will have contest it but see viner abridgment title evidence  page No burrow er p as it wash certain the witness will be pay or release no  opinion that he take encourage he to think it worth his while Mr fazakerly and  sir Thomas Bootle have tell I they take it to be settle and indeed the number  of will where the objection lie and never be take demonstrate it there be not  a single determination which carry the incapacity far than the rule I have lie  down videlicet that a person shall not in a court of justice entitle himself  to a devise by virtue of his own subscription which at the time of subscribe  he can not have prove by his examination that be the case of Hilliard v  Jennings that be the resolution and judgement of the court in the ease of  Anstey v dowsing there the defendant be a devisee subject to a annuity of a  year to Elizabeth the wife of John hail for her life for her separate use and  there do not appear to be any personal estate her interest be a charge in the  nature of legacy to be pay by the defendant out of the estate devise to he and  be for her separate use it be a trust and the defendant be her trustee upon  the validity of the devise to the defendant her annuity depend if he succeed  her title follow of course for he must take the land as the testator give it  subject to the charge and trust and upon the devise to the defendant be find  good at law a court of equity must of course have decree the trust so that she  be the beneficiary and trust of the party to the cause and either way the  judgement will immediate affect her interest in matter of evidence husband and  wife be consider as one and can be witness the one for the other the husband  can be witness for his wife in a question touch her separate estate there be  no release there can be no payment or tender without the interposition of a  court of justice because the value depend upon in certain estimation but no  attempt have be there make towards pay or tender the value of the annuity this  bring it precise to the case of Hilliard v Jennings the witness in a court of  justice be to support a devise to himself by virtue of his own subscription  burrow for the case be the same as if the wife have be the witness or the  husband the devisee of the annuity it be true that ld Ch lee in deliver his  opinion argue as if the objection of benefit from the will to the witness at  the time of subscribe can not be answer or take off by any subsequent fact  which he ground upon the authority of the Roman law from the digest and Code  where it be say creating neutr  tunc inspicer to withhold cum to set a mark  upon non death tempore but the sense of this passage be not enough consider  condition neutr  here mean the positive capacity of the witness their rank or  quality as freeman citizen adult there never be a time in the Roman law when  interest under the will be any objection to subscribe witness to explain this  a little far the essence of the Roman testament be the appointment of a heir  to represent the testator before the twelve table the testamentary heir may be  make two way in procinetu as plutarch describe at the siege of corioli or in  the form of a legislative act in a place of assembly let down the twelve table  give a absolute power to every man to make the law of his ownsuccession but  prescribe no form as a testament be a alienation of the testator property and  family after his death the form of mancipation per a et scales use in other  transfer of property or family be follow in this the heir be suppose to buy  and the testator to sell his succession and family for and as represent their  family the ceremony be transact with all the symbol of a sale in the presence  of the officer who hold the balance and of five freeman citizen of Rome  fourteen year of age at least solemnly require to bear witness these ceremony  and symbol be invent before instrument in write and that opinion be deliver by  ld Ch I lee on Tuesday d April burrow er p this imaginary sale per a et scales  be use in alienation adoptions and almost every species of change of dominion  or property strict so call proprium be quod quis libra trade et copper coin  and in many other contact subsequent law and usage especial after testament  come to be in write take away the ceremony of the symbolical sale add two  witness more and prescribe form of attestation but leave the condition of the  witness burrow the same they must be freeman Roman citizen adult testabiles  yet by a equitable construction general reputation be sufficient as where the  witness who every body consider as a freeman real be a slave this be the  condition neutr  and must exist at the time of subscribe as much as where  there be a custom to surrender into the hand of two copyholder out of court  they must be copyholder at the time though in other case the objection of  interest to a witness be allow it do not incapacitate witness to a will while  the testament per gas et scales continue neither the testator or heir or any  of the family of either can be witness because they be to be suppose the party  to the contract when the symbolical sale cease and testament be in write and  secret the heir himself be a sufficient subscribe witness afterward though the  will be open and he know the content he be a sufficient subscribe witness as  appear front Cicero for Milo speak of Cyrus One to be will simul sign cum  clodio will autem openly to make that to hang I to scratch Justinian Inst lib  title recite the heir have be allow to be a witness but forbid it not upon the  foot of his be interest a but ad imitation former household buyer because hoc  totum pain testament to order agreeableness to give as a loan today inter  testator to hang holy but in the next section he express allow the beneficiary  who trust and legatee to be subscribe witness because non law successor are  and yet the heir may be mere a trustee for the whole inheritance to be deliver  to the beneficiary who trust and the legatee may exhaust the whole estate this  abundant show that the passage from the Code and digest do not relate to  witness be interest and the Code and digest be consistent with the institute  on this head the Code digest and institute be all one connect work the Code be  first publish in the three year of Justinian the digest be compile before the  institute but publish a month after in the seven year of Justinian burrow the  proposition that any kind of interest at the time of subscribe can not  afterward be take off and the application of this passage in support of it be  much agitate in westminsterhall and the whole kingdom a gentleman at the bar  pursue the proposition through all its consequence hit upon this point that a  charge upon land for payment of debt will defeat the will if a subscribe  witness be a creditor at the time of subscribe as soon as it occur to he he  mention it to I there have be many such devise but the question l whether the  witness be a creditor never have be ask at law nor by interrogatory in  chancery frame to establish or impeach a will if the general rule be right the  deduction seem very plausible he put this point in issue in chancery and  examine to it in behalf of the heir in several case Lord Hereford will be one  of the first this be another a case soon happen which bring the general  proposition fling out by ld Ch I lee under judicial examination on the that of  February the earl of vol to Oliv edit p sect a this be not true but direct the  contrary and will appear so not only clear from the comment but even from the  text of Justinian if it be fair cite for several material word be omit and yet  from this imperfect quotation it appear that Justinian forbid the testimony of  the heir because even after the abolition of the testament per a et scales and  when he write today the whole be to give as a loan inter testator et heir holy  and therefore the know ruleof justice that none shall be testis en re not  common with others et causan apply when Justinian write as it do in the case  of testament per gas et scales burrow er p ailesbury die have make a will that  may of his whole estate real and personal charge with debt and legacy the  three subscribe witness as be in his service at his death have legacy one a  year for life the other two pecuniary legacy all three release the that of  February he have make a former will on the that of December attest by three  disinterest person under which the three subscribe witness to the last will  will have have the same legacy a bill be bring in chancery to have the latter  will establish notwithstanding this doubt and state the whole matter  notwithstanding the will of which the testator have revoke as he think  effectual and may probable have cancel it be a benefit to the witness at the  time of subscribe to have a legacy under the last will the cause come on to be  hear the that of November and I be of counsel in it I have take the liberty to  ask Mr justice denison whether the judgement of the court in the case of  burrow Anstey v dowsing go upon the general proposition he tell I it do not  but upon the particular circumstance as to himself he be not of opinion that a  objection of benefit at the time of subscribe may not be take off by be  disinterest at or after the death I mention this to the Lord chancellor who  have get from ld Ch I lee a copy the opinion he deliver and he be clear they  be good witness a at the death of the testator it be indifferent to they which  will prevail beside they have release b he declare the last will of the that  of may to be well prove establish it and decree the trust there be another  matter touch in that opinion deliver by ld Ch just lee which interfere with  the rule I have lie down in its full extent videlicet that a subscribe witness  who be a several devisee which devise as to he must be void shall not by his  subscription authenticate the rest of the will but for this no authority be  cite in the case of Hilliard v Jennings the whole land be devise to William  Hilliard and I be satisfy that ld Ch I holt take the distinction that the will  may be only void quoad the devise to the witness because Carthew pa who be  counsel in the case and have report it the most correct hint a expression of  that kind videlicet that it be void quoad the devise of the land to the  plaintiff and ld Raymond in the case of Baugh v Holloway say express that ld  Ch I holt so determine the validity of the will as to the personal estate be  not before the court and never can come before the court because that question  belong to another jurisdiction the case in judgement be of a devise to the  witness only ld Ch I holt may very proper throw out something to guard against  inference from their present determination to the case of a devise to a three  person I have look into the Registerbook for that case of Baugh and Holloway  and find the state of it to be thisRichard Baugh die leave Elizabeth his wife  and two son name John and George have first make his will date that June  whereby he devise certain premise to his young son George his heir and assign  charge with the payment of which be due on bind to Lancelot Baugh the testator  young brother and the say testator also devise certain other land to the say  George with a proviso that on the say George burrow attain twentyone and have  pay he then all the say premise shall return to his old son John and in case  both his say son shall die under twentyone and unmarried then the say testator  devise the say firstmentioned premise to his wife Elizabeth I believe this be  right notwithstanding the correction of the editor of ld canden argument in  his p of his first part N B may be prior in time to February a the heir or  executor name in a testament can be a witness to it for it be his own affair  strahan roof vol page this be warrant by reference to the digest and the  institute de Testamen ordinan par though the last part only be refer to by  roof b this make they good witness if they have not release consequent this be  no authoritythat the release will have take off the objection peer wms burrow  er p her heir and assign charge with the payment of the say to the say  Lancelot Baugh and also with the payment of to the say Lancelot Baughs child  and devise the say lastmentioned premise to his brother Edward Baugh his heir  and assign both the testator say son die without issue under age and Elizabeth  Baugh possess and enjoy the say premise under the say will and afterward die  that October have first make her will and devise the say firstmentioned  premise to Catherine Rawlins charge with the payment of her debt and also  subject to the say charge make by her husband will Catherine Rawlins enter and  enjoy the say premise and die have make her will date that may and devise the  say premise to whether Oxenden and Elizabeth Holloway as tenant in common  charge with the payment of the debt and legacy appoint to be pay thereout by  the say Richard Baugh and also of the debt c of the say Elizabeth unsatisfy by  the say Catherine Rawlins the say whether Oxenden and Elizabeth Holloway claim  the say premise as only child of John Holloway by whether his wife and as  coheir at law of the say Elizabeth Baugh and Cath Rawlins Lancelot Baugh file  his bill and claim as uncle and heir at law of John Baugh the survive son of  his brother Richard Baugh thereby impeach his say brother will the order be  state right in peer wms and on search the register book it can not be find to  have come on again therefore it be reasonable to think the heir must have be  advice to drop it devise of land differ extreme from will they be no  appointment of a heir they create no representation the devisee do not stand  in the place of the devisor as to simplecontract debt and till the statute of  king William the devisee be not liable to special debt because he be consider  as a alienee and not as the heir they be conveyance or disposition death  causan and that be the reason why a man can devise land which he shall  afterward acquire one devise may be void as in the case of this very will and  the devise of another estate good there be no probate of the whole instrument  every several devisee must make out his title in a distinct cause and de to  make new against every new party upon legal principle there be great weight in  the distinction burrow say to have be make by ld Ch I holt and the author  refer c by Swinburne be strong upon the reason and fitness of the thing the  danger of fraud from the imagination that four witness may divide the estate  among they seem very chimerical that very contrivance will overturn the will  If it will not they may as well execute their scheme by four devise in four  paragraph several attest ThirdlyIn the three and last place I propose to  consider the present case under its own circumstance these witness be in the  nature of legatee not several devisees the presumption of interest at the time  of subscription be not take off at the death by the principal fund be more  than sufficient it be take off before the trial by the debt be pay but the  benefit at the time of subscribe be nothing it do not appear the principal  fund then be deficient the legacy be a bare possibility upon a contingency  which contingency never happen but I will go far I think a charge to pay debt  ought not to incapacitate subscribe witness although they want and claim the  benefit of it every honest man shall make that charge in his will he who omit  it be say to sin in his grave fraud can be presume from insert a clause which  it will be iniquitous not to put in No man will resort to wicked and  fraudulent practice to get his debt charge upon land by the will of his debtor  if he suspect the debtor circumstance ha will not stay till his death or trust  to a revocable security W m c by contrive to attest each for the three other  as to the land devise to those other though none of they can be a good witness  as to the devise to himself burrow er p the presumption of fraud in this case  will be against justice and truth and the public inconvenience so great that  hardly a will can stand this charge ought to be in every will the person  attendant upon a die testator and therefore most common witness be general in  some degree creditor such as servant parson attorney apothecary c and the  disallow such person to be witness can not answer end of public utility upon  the whole we be all of opinion that this will be duly attest by three witness  judgement for the plaintiff