firft again. And if there be two claufes in a will fo totally repugnant to each other that they cannot ftand together, the latter fhall be received and the former rejected: wherein it differs from a deed; for there of two fuch repugnant claufes the former fhall ftand. Which is owing to the different natures of the two inftruments; for the last will and the first deed is always most available in law. Yet in both cafes we should rather attempt to reconcile the repugnant claufes k.

In making a will where any real estate is intended to pass thereby, due attention must be had to the ftatute 29 Car, II. c. 3. (commonly called the ftatute of frauds), which directs that all devifes of lands and tenements fhall not only be in writing, but figned by the teftator, or fome other perfon in his prefence and by his express direction; and be fubfcribed in his prefence by three or four credible witneffes. In the construction of this ftatute it has been adjudged that the teftator's name written with his own hand, at the beginning of his will, as, "I John Mills do make this my last will "and teftament," is a fufficient figning, without any name at the bottom; though the other is the fafer way. It has also been determined, that though the witneffes must all fee the teftator fign, or at least acknowledge the figning, yet they may do it at different times. But they muft all fub

Black. Com. 2 V. 381. 502.-For reconciling repugnant claufes in wills, and where by the fame will the fame thing has been given to two different perfons, there has been much litigation, and various have been the determinaKions of the courts concerning it. Co. Litt. 112. Note 1. 13 edit. Yet the rule mentioned p. 148. has always been adhered to, and, if poffible, the will of the teftator purfued; as in very late cafes, where two legacies were given to une perfon by the fame will; as where two, each of 1000l. Old South Sea Annuities, were given fimpliciter, plainly or fimply, to the fame perfon by the fame inftrument, it was prefumed the teftator intended the legatee should have hut one, and decreed accordingly. Brown's Cha. Rep. 30. But where a legacy of 500l. was given by the will, and another of 5col. by a codicil added

5

thereto, it being inferred that the teftator intended the legatee to have both, the fame was fo determined by the court of chancery. Brown's Cha. Rep. 389. And from thefe, and other determinations of the court, it is obferved, that where two legacies of quantity are given fimpliciter to the fame perfon by the fame inftrument, the prefumption shall be against their being intended as cumulative; otherwife, where given by different inftruments. Yet where both legacies are given for the fame caufe they fhall not be cumulative, whether in the fame or different inftruments: otherwife where one is given generally and the other for an exprefs caufe. And that very flight circumstances have been confidered as fufficient to fhew the tef tator's intention either one way or the other. 1 P. Will. 424. Note 1. 4 edit.

fcribe

fcribe their names as witneffes in his prefence, left by any poffibility they should mistake the inftrument'. It has likewife been determined, that a will is good though none of the witnesses faw the teftator actually fign it, if he owns it before them to be his hand-writing; and it is obfervable that the ftatute of frauds does not say the teftator shall fign his will in the prefence of three witneffes, but requires these three things; firft, that the will should be in writing; fecondly, that it should be figned by the teftator; and thirdly, that it fhould be fubfcribed by three witneffes, in the prefence of the teftator ". But it is not neceffary that the witneffes fhould be acquainted with the contents of the will". And, although the ftatute requires that the witneffes to the will fhall fubfcribe their names in the teftator's presence (to prevent obtruding another will in the place of the true one), yet it is fufficient if the teftator might fee, it not being abfolutely requifite that he should actually fee them figning; for, at that rate, if a man should but turn his back, or look off, it might make the will void. And where the teftator defired the witneffes to go into another room seven yards diftant to atteft his will, in which there was a window broken through, whereby he might fee them, it was adjudged by the court to be a witneffing in his prefence. So, where a will was attested by witneffes in an attorney's office, when the testatrix was in her carriage, where the might fee them through the windows thereof and of the attorney's office, it was adjudged to be well attested P.

THE witnesses should be entirely difinterested persons, and fuch as can receive no benefit or advantage by the will, and if there is any freehold eftate devifed thereby, there muft, as has been fhewn, be three of them; but, if the will concerns only personal estate, two witneffes will be fufficient, concerning which somewhat more will presently be mentioned. A witness either to the execution of a will or codicil fhould have no legacy given him thereby, neither fhould he be a creditor of the teftator, efpecially where, as is often the cafe, the land devised by the will is made fubject to the payment of debts. For by the ftatute 25 Geo. II. c. 6. all legacies given to witneffes are declared void. And in a cafe before

1 Black. Com. 2 V. 377.

m Cafe of Stonehouse and Evelyn,

3 P. Will. 254.

Abr. 509. 4 Burn's Ecclef. Law, 173. • 2 Salk. 688.

P Cafe of Caffon and Dade, H. 1781.

n Cafe of Ellis and Smith, 5 Bac. Brown's Cha. Rep. 99.

the

the court of King's Bench, in Mich. Term, 31 Geo. II. where all the fubfcribing witneffes were creditors of the teftator at the time of executing his will, it was urged that their being creditors of the teftator invalidated their teftimony, and that notwithstanding their debts were paid them before the time of trial; although the court in this cafe determined that a benefit given to a subscribing witness should not annul his atteftation, if, at or after the teftator's death, the witness be difinterested P. However, it is fafeft to have perfons for witneffes who are quite difinterested; as here we fee legatees thereby lofe their legacies: and as to creditors, though their teftimony will be admitted on a trial, yet their credit will be then left (like that of all other witnesses) to be confidered on a view of all circumftances by the court and jury.

WHERE the will concerns only perfonal eftate, if the fame be written in the teftator's own hand, though it has neither his name nor his feal to it, nor witneffes present at its publication, it is good; provided fufficient proof can be had that it is the teftator's hand-writing. And if written in another man's hand, and never figned by the teftator, yet, if proved to be according to his inftructions, and approved by him, it hath been held good for the personal estate. But it is the fafer and more prudent way, and leaves lefs in the breast of the ecclefiaftical judge, if it be figned or fealed by the teftator, and publifhed in the prefence of witneffes. When the witneffes are omitted, the ordinary, before he grants probate, will require the teftator's hand-writing to be proved, or, if another perfon wrote his will, that the writing or will produced is his will; whereby not only five or fix and twenty fhillings extraordinary expence will be occafioned even when perfonal application is made, but perhaps a deal of trouble to the executor in procuring fufficient proof.

WHERE the will only concerns copyhold lands, the same having been furrendered to the ufe of the will, although the will be not attested by any witnesses, it shall direct the uses of the furrender; for the ftatute of frauds, which requires the teftator's figning in the prefence of three witneffes, is confined only to fuch eftates as 'pafs by the ftatute of wills of the 34 & 35 Hen. VIII. which doth not extend to copyholds, whereon we have treated more fully towards the former part of the preceding chapter.

P 4 Burr. Rep. 430.

17

9 Black. Com, 2 V. 501,

WITH

WITH refpect to perfons who may be made executors, all perfons are capable of being executors that are capable of making wills, and many others befides; as feme-coverts, and infants, nay, even infants unborn, or in ventre fa mere, that is, in the mother's womb, may be made executors. But no infant can act as fuch till the age of seventeen years; till which time adminiftration must be granted to fome other, durante minore ætate, or during the minority. Yet, if there be two executors, one whereof is under age, he of full age may folely prove the wills,

ALTHOUGH there are very few perfons but may be made executors, yet it behoves the teftator to beware of whom he appoints executor; for, if a creditor conftitutes his debtor his executor, it is a release or discharge of the debt, whether the executor acts or no; provided there be afsets sufficient to pay the teftator's debts: for, though this difcharge of the debt hall take place of all legacies, yet it will not be allowed against the teftator's creditors. If there be several joint debtors, and the creditor makes one of them executor, the debt is extinct in law"; and if the husband of a woman that is made executor be indebted to the teftator, this making of the wife executor is a release in law ". Formerly it was a fettled notion, that where there was no refiduary legatee appointed by the will, the furplus or refiduum devolved to the executor's own use, by virtue of the executorfhip. But now there is this restriction, that, although where the executor has no legacy at all, the refiduum shall in general be his own, yet wherever there is a fufficiency on the face of a will (by means of a competent legacy or other

r Black. Com. 2 V. 503.

principle upon which it proceeds, and

$1 Lev. 181. mentioned again here- the court has been anxious to collect after, page 193.

t Black. Com. 2 V. 512. u Went. Off. Exec. 31, 32. w Ibid. 207. As attention fhould be had with respect to making a debtor executor, fo it should be in bequeath ing to a creditor, it being an established rule, that a legacy given by a debtor to his creditor which is equal or greater than the debt, fhall be prefumed to be intended in fatisfaction of the debt; yet this rule, although acknowledged to be fully established, being thought a ftrict zule, in fome late cafes a diffatisfaction has been expreffed with respect to the

from the will circumstances to rebut the prefumption; and where the pay ment of debts hath been particularly mentioned in the will, the prefumption of the teftator's intention, that the legacy given should be in fatisfaction of the debt, hath been taken away, and the creditor decreed both debt and legacy. 1 P. Will. 470. 3 Atk. 65. So where the legacy hath not been equally beneficial with the debt in fome particular (although it may have been more fo in another) as in time of payment, or in point of certainty. P. Will. 410. Note 1. 4 edit.

wife) to imply that the teftator intended his executor fhould not have the refidue, the undevifed furplus of the eftate fhall go to the next of kin ; the executor then standing upon exactly the fame footing as an adminiftrator, who by the ftatute 22 & 23 Car. II. c. 10. muft make distribution thereof to the inteftate's next of kin *; and for making this diftribution it may be observed that an executor is compellable thereto by the court of chancery; where, of late it has been determined, that, if there be no kindred, the executor fhall stand trustee for the crown, to whom the undevised furplus fhall go, as in the cafe of a perfon dying wholly inteftate, mentioned in the former part of this work 2.-Much litigation having been with respect to executors claiming the undevifed furplus, further mention will be made thereof, under a fubfequent head".

THERE are very few perfons but may be devisees, or legatees, and take either real or perfonal eftate by devife; the latter of which, on the teftator's death, vests in the executor, and cannot be taken without his confent, he being the person to answer the teftator's creditors; but with the former an executor, as fuch, has no more concern than an administrator heretofore mentioned; for, on the teftator's death, the real estate immediately vefts in the devisee, or person to whom it is devised; whereby formerly great inconveniencies arofe, as creditors by bond and other fpecialties were defrauded of their fecurities, not having a. remedy against the devifee of their debtor; to obviate which the ftatute 3 W. & M. c. 14. was made, and thereby the devife, as against fuch creditors, is deemed void, and they are enabled to maintain their actions jointly against both the heir and devifee, as has been fhewn f.

A MARRIED Woman, or, as the law terms her, a femecovert, although she cannot be a grantee to her husband, as a man cannot grant any thing by deed to his wife, or enter into covenant with her; for that would be to suppose her separate existence; but a woman may be attorney for her husband, as that implies no feparation; and an husband may bequeath any thing to his wife by will; for that cannot take effect till the coverture is determined by death %,