Opinion. if the Superior Court of the State of Delaware should decide that the properties above mentioned are exempt from municipal taxation by the City of Wilmington, the said amount, so paid as aforesaid, should be repaid by the defendant to the plaintiff. That if the court shall be of the opinion that the said lots of land and buildings, so as aforesaid designated as Nos. 1, 2, 4A, 5,6 and 9 were exempt from municipal taxation by the said defendant for the tax year beginning July 1, 1914, and ending July 1, 1915, under said Chapter 106, Volume 21, of the Laws of Delaware, then judgment shall be entered for the plaintiff and against the defendant for the sum of three hundred and seventy dollars and sixty-nine cents, with the costs of this suit; but if the court shall be of opinion otherwise then judgment shall be entered for the defendant and against the plaintiff for the costs of this suit. Plaintiff contends that the properties mentioned in the case stated are exempt or relieved from taxation by the city for the year 1914 by reason of Section 5 of Chapter 106, Volume 21, of the Laws of Delaware. Defendant contends that said section 5 is so modified by section 6 of the same chapter, as to limit the period in which manufacturing or industrial establishments, erected after the enactment of the law, are exempt, to ten years from the passage of the law, and the law having been approved on the twentieth day of May, 1898, the ten years have elapsed and the properties in question were subject to taxation for municipal purposes by the defendant for the year 1914. Chapter 106, Volume 21, was an act to classify real estate in the City of Wilmington for the purposes of municipal taxation, and to exempt certain lands from such taxation. Sections 1 and 2 have to do with the classification of the real estate within the city, in such a manner as to discriminate between the rural or suburban, and the built-up portion of the city, and have no special bearing upon the question raised in this case. Sections 3, 4, 5 and 6 have to do with the exemption from taxation of marsh and meadow lands within the limits of the city, and are as follows: "Section 3. That all marsh and meadow lands within the limits of the City of Wilmington that are protected from overflow by the tides by banks Opinion. at the expense of the owners thereof, whereon no houses or buildings are erected, be and the same are hereby declared to be exempt from all taxes, assessments, burdens or impositions whatsoever for municipal purposes.' "Section 4. That any marsh or meadow land, as aforesaid which has been filled in, or which may hereafter be filled in or raised above high water, so as to become high and fast land; the expense of the same being borne by the owner, shall be exempt from all taxes, assessments, burdens or impositions whatsoever for municipal purposes for a period of ten years from the time said lands become high and fast lands." "Section 5. That any marsh or meadow land, as aforesaid upon which any manufacturing establishment or industrial improvement, for the employment of labor, shall be erected after the passage of this act shall for a period of ten years after the same shall be erected, be exempt from all taxes, burdens, assessments or impositions whatsoever for municipal purposes." "Section 6. That any marsh or meadow land, as aforesaid or where the same has been filled in or raised, as aforesaid, so as to become fast and high land, upon which any manufacturing establishment or industrial improvement, for the employment of labor has been erected within two years prior to the passage of this act, or which may hereafter be erected, shall, for a period of ten years after the passage of this act, be exempt from all taxes, assessments, burdens or impositions whatsoever for municipal purposes.' Under section 3 all marsh and meadow lands protected from overflow by the tide, by banks maintained at the expense of the owners, upon which no houses or buildings are erected are exempt from taxation indefinitely and until the provisions of that section be changed by an act of the General Assembly. Under section 4, whenever the marsh or meadow lands mentioned in section 3, have been filled in or raised above high-water mark at the expense of the owner, the exemption from taxation is limited to ten years from the time such lands became high and fast lands. Section 5 provides that the marsh or meadow land mentioned in either section 3 or section 4, when improved by the erection thereon of any manufacturing establishment or industrial improvement, for the employment of labor shall, for a period of ten years after the same shall be erected, be exempt from taxes, etc., for municipal purposes. To encourage the reclamation and subsequent improvement of the marsh and meadow land within the city limits, seems to have been the object in view in the enactment of sections 3, 4 and 5, and had the chapter ended with section 5, there could be no question that the lands and buildings mentioned in this case Judgment for Plaintiff. (the building having been erected less than ten years ago) would be exempt from taxation for the year 1914. Section 5 deals specifically with marsh or meadow land upon which manufacturing establishments are erected after the passage of the act, and clearly intends to exempt them from taxation for city purposes for the period of ten years after the erection of the buildings, thus affording equal benefit, and encouragement by way of exemption of taxation, to all, who improve such lands after the passage of that act. The object of section 6, we think, was to give the same benefit to those who had already built such establishments upon the marsh or meadow land, within two years prior to the passage of the act, as was given to those which might be erected after the passage of the act, as provided in section 5. To construe section 6 otherwise, or as contended for by counsel for defendant, would destroy the primary object of sections 3, 4, 5 and 6, which was to encourage the building of manufacturing establishments or industrial improvements, for the employment of labor, upon the marsh or meadow lands within the city. We think the phrase "or which may hereafter be erected" where it occurs in section 6 is meaningless, and section 6 should be read without such phrase. We are therefore of the opinion that the said lots of land and buildings designated in the case stated as Nos. 1, 2, 4A, 5, 6 and 9 were exempt from municipal taxation by the defendant for the tax year beginning July first, 1914, and ending July first, 1915, under Chapter 106, Volume 21, of the Laws of Delaware, and order judgment entered for the plaintiff and against the defendant for the sum of three hundred and seventy dollars and sixty-nine cents with the costs of this suit. Syllabus. FRANCIS A. HUDSON, Caveator of the alleged last will and testament of LUVINA LAYTON, deceased, vs. JOHN FLOOD and ANNIE FLOOD. 1. WILLS-WITNESSES-"CREDIBLE WITNESSES"-WHO ARE. Rev. Code of 1915, § 4212, declares that no person shall be incompetent to testify in any civil action because a party to the record, or interested in the event of the suit, except that, in actions or proceedings by or against executors, administrators, or guardians, neither party shall be allowed to testify against the other as to any transaction with or statement by the testator, intestate, or ward, unless called by the opposite party. Section 3241 declares that every will must be attested and subscribed by two or more credible witnesses. Held, that the beneficiary of a will was a credible witness, the expression 'credible witnesses" being equivalent to competent witnesses; and hence a beneficiary may be an attesting witness. 2. WITNESSES-CompeteNCY-PROCEEDINGS "ACTION BY OR AGAINST EXECUTOR OR ADMINISTRATOR." A proceeding for the probate of a will is not an "action or proceeding by or against executors or administrators," within Rev. Code of 1915, § 4212, declaring that persons interested cannot, in an action or proceeding by or against executors or administrators, testify to transactions with or statements by the deceased; and hence a beneficiary of a will, who was an attesting witness, may testify in a proceeding for its probate. 3. WILLS-ATTESTING WITNESSES-Interest. Rev. Code of 1915, § 3242, declaring that a creditor of a testator, or a person taxable for poor relief, may be a witness to a will, though it provide for the payment of the testator's debts, or the relief of the poor, having been enacted long prior to the enactment of section 4212, which relieved witnesses from the disability of interest, an attesting witness, who was also a beneficiary of a will, is not incompetent by reason of the earlier statute. 4. COMMON LAW-STATUTES-APPLICABILITY. Act 25 Geo. II, passed in 1752, provided that any attesting witness, to whom any devise, legacy, or interest shall be given, shall be admitted as a witness to the execution of the will, but the devise, legacy, or interest shall be utterly null and void. The statute further provided that it should extend to the British colonies in America, where the statute of frauds was made applicable by practice or legislation. Const. 1776, art. 25, declared that the common law of England, as well as so much of the statute law as should have been adopted in practice, should remain in force unless altered by a future law of the Legislature. It did not appear that the act of 25 Geo. II was ever incorporated in the Delaware statutes, or applied by its courts. Held, that the mere fact that it was applicable to wills executed in Delaware did not, under the Constitution, work an adoption, and it is not in force. (April 6, 1915.) Judges RICE and HEISEL Sitting. Daniel J. Layton, Jr., for the proponent of the will. Statement-Opinion. Robert C. White and James M. Tunnell for the caveator. APPEAL (No. 27, February Term, 1915) from the Register of Wills for Sussex County, admitting to probate the will of Luvina Layton, deceased, against a caveat filed by Francis Hudson. Upon application of the parties the Superior Court directed the question of law involved to be heard by the Court in Banc. The opinion of the latter court being certified to the Superior Court, the decree of the Register was affirmed. IN THE COURT IN BANC. PENNEWILL, C. J., BOYCE, CONRAD, RICE and HEISEL, J. J., sitting. (June 28, 1915.) STATEMENT. In the will of the deceased, Annie Flood was named as a beneficiary. The executors named were John Flood, husband of Annie Flood, and Francis Hudson, brother of the deceased. The witnesses to the will are John Flood, one of the executors, and Annie Flood, the beneficiary. The case was argued before the Superior Court at the last February Term, but no decision was rendered, the court considering that the questions of law involved ought to be heard by the Court in Banc and directed them to be so heard. The only question raised by the record is, whether the witness Annie Flood is a credible witness within the meaning of the Statute of Wills, the credibility of the other witness, under the law, not being questioned. PENNEWILL, C. J., after stating the facts as above, delivering the majority opinion of the court: [1] Under the law of this state, Revised Code of 1915, §§ 3241 and 3242: |