testation is not a nullity. If the other be capable of being produced, he must be called, and must prove that the instrument was duly executed according to the foregoing directions (i). If he alone was a competent witness and be dead, disabled, or his absence accounted for so as to let in secondary evidence, his handwriting must be proved; if neither was competent, the handwriting of the testator. In such cases it will be presumed that the execution was properly made, and if the instrument be above thirty years old, it seems that no question as to the competency of the witnesses can arise, though the testator have recently died (k). witness to XV. And be it further enacted, that Gifts to an if any person shall attest the execution attesting of any will to whom or to whose wife or be void. husband any beneficial devise, legacy, estate, interest, gift, or appointment, of or affecting any real or personal estate (other than and except charges and directions for the payment of any debt or debts), shall be thereby given or made, such devise, legacy, estate, interest, gift, or appointment shall, so far only as concerns such person attesting the execution of such will, or the wife or husband of such person, or any person claiming under such person or wife or husband, be utterly null and void, and such person so attesting shall be admitted as a (i) See B. N. P. 264. (k) Doe v. Wolley, 8 B. & C. 22, and see 4 T. R. 707. witness to prove the execution of such will, or to prove the validity or invalidity thereof, notwithstanding such devise, legacy, estate, interest, gift, or appointment mentioned in such will. This is an enlarged re-enactment of the statute 25 Geo. II. c. 6, above alluded to, which being passed to explain the 29 Chas. II. c. 3, related only to wills requiring the attestation of witnesses; consequently it did not affect a bequest in a will of personalty only (1), an attestation being in such case unnecessary. Therefore a bequest to an attesting witness was not in such case void, nor was the will invalid, only the witness was incompetent to prove its validity. But it was otherwise, if the will contained a devise of lands. The subscription of witnesses being now in all cases necessary, this clause extends alike to all wills. The preceding section preserves the validity of the instrument, notwithstanding the incompetency of the witness, by allowing it to be established by other evidence; this by annulling the particular disposition which creates the interest, restores the competency of the witness. The former simply prevents his disability from defeating the will; this enables him to establish it. Towhose wife or husband.]—These words are new, and were probably suggested by the case of Hatfield v. Thorpe, above quoted. The former statute was confined to interests derived immediately from the will. It did not extend to those accruing by operation of law; consequently, where the wife was attesting witness, a devise to the husband was not void, and vice versá; and as evidence in favour of the will by the one would be virtually given on behalf of the other, neither could in such case be (1) Emanuel v. Constable, 3 Russ. 436. deemed a competent witness, and the whole will was void. A subsequent marriage between the attesting witness and the legatee does not of course come within this enactment so as to make the legacy void; it only disables the party from proving the execution, and brings the case within the preceding section. So far only as concerns such person.]-Neither precedent nor ultimate estates therefore are affected by this section. The interest intended to pass by the void disposition, whether real or personal, will now in general go to the residuary devisee or legatee. See sect. 25. admitted a XVI. And be it further enacted, that Creditor atin case by any will any real or personal testing to be estate shall be charged with any debt or witness. debts, and any creditor, or the wife or husband of any creditor, whose debt is so charged, shall attest the execution of such will, such creditor notwithstanding such charge shall be admitted a witness to prove the execution of such will, or to prove the validity or invalidity thereof. The stat. 25 Geo. II. c. 6, s. 2, enacted "that in case by any will or codicil any lands, tenements or hereditaments, are or shall be charged with any debt or debts, and any creditor whose debt is so charged hath attested, or shall attest the execution of such will or codicil, every such creditor, notwithstanding such charge, shall be admitted as a witness to the execution of such will or codicil." XVII. And be it further enacted, that Executor to no person shall, on account of his being be admitte admitted a witness. Will to be marriage. an executor of a will, be incompetent to be admitted a witness to prove the execution of such will, or a witness to prove the validity or invalidity thereof. An executor who took nothing under the will, was always held to be a good attesting witness (m`, and in Lowe v. Jolliffe, 1 Bl. R. 365, an executor in trust, who had acted under the will, was permitted to prove the testator's sanity. So a trustee has been held to be a good witness without releasing (n). If the executor, being also an attesting witness, have a legacy left him, the bequest will be void by the 15th sec., and he will be competent to support the will; but if he be not an attesting witness, the bequest will not be affected by that section, and consequently the executor will not be a competent witness for any purpose. The smallest donation, as a ring, or suit of mourning, will, it seems, incapacitate him. But whether admissible as an attesting witness to uphold the will or not, it will not be invalidated by reason of his incompetency.--Sec. 14. XVIII. And be it further enacted, revoked by that every will made by a man or woman shall be revoked by his or her marriage (except a will made in exercise of a power of appointment, when the real or personal estate thereby appointed would not in default of such appointment pass to his or her heir, customary heir, executor, or administrator, or the person entitled as his or her next of kin, under the statute of distributions). (m) Bettison v. Bromley, 12 Ea. 250. It was an established rule of law, that the will of a feme sole was revoked by her marriage, because she then ceased to have any controul over her property, and it seems that even an agreement that the will should stand would have had no operation (o). On the other hand, the will of the husband was in no respect affected by the marriage, though it might have been by subsequent events arising from it, so that whatever portion might have been brought by the wife, she might have been immediately afterwards left destitute by virtue of a will made at a time when no change of circumstances was in the contemplation of the testator. This salutary enactment defeats all previous dispositions tending to prejudice the new relations acquired by the marriage; but the exception preserves the will where its revocation could not be immediately beneficial to them. It seems that the property must come to the heir or next of kin in that character, in order for the marriage to work a revocation of the will; and provided it does so come, the will will be revoked, though no benefit ensued to the new relations. Thus, supposing a testator, having a power of appointment, with a limitation in default to himself in tee, has a son by a former marriage, his second marriage will revoke the will though the son would take the estate. On the other hand, if it were limited over to his eldest child, the will would stand, though he had no child at the time of the marriage. So if the limitation were to all his children. The question whether the will be revoked or not, must, it seems, depend not solely on the limitations of the instrument creating the power, but the circumstances of the testator's family must be looked at, at the time of the marriage. If, for instance, there be a (0) Doe r. Staple, 2 T. R. 684. |