Orange County NcArchives Court.....Allison's, Executors V. Allison 1825
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Source: Nc Reports Vol 11, 1825
Written: 1825

December Term 1825

(141) ALLISON'S executors v. ALLISON.

From Orange.

A executed a paper writing in the form of a deed of trust, and afterwards on 
the same day made his will referring to the former paper, the purpose of which 
was a distribution of his estate after death. D Y was one of the trustees 
named in the deed, and also one of the executors named in the will, and one of 
the only two subscribing witnesses to both papers. The trustees were directed 
by the first instrument to retain out of the funds a compensation for their 
trouble. The testator had both real and personal property, which his trustees 
and executors were directed to sell. After the death of A, D Y released all 
his claim to the other trustees.

Whether the two papers are to be considered as one testamentary disposition. 
Quere?

The will is not well executed. D Y had such an interest in the lands devised 
as was contemplated by the act of 1781, and when such interest exists at the 
time of attestation, no subsequent release will avail.

John Allison, on the first day of May, 1821, executed a paper writing in the 
presence of David Yarbrough and William Horton, subscribing witnesses thereto, 
with the solemnities required by law in a will to pass real estate; this 
writing was the following words, viz.:

"Know all men by these presents, that on the first day of May, in the year of 
our Lord one thousand eight hundred and twenty-one, I, John Allison, of the 
town of Hillsborough, county of Orange, and state of North-Carolina, of the 
one part, Frederick Nash, Abner B. Bruce and David Yarbrough, of the town, 
county and state aforesaid, and William Shaw, of the county of Wake and city 
of Raleigh, of the other part, witnesseth, that for and in

11—17 [123]

consideration of the natural love and affection which he the said John 
Allison, hath and beareth to his friends and relations in North Britain, in 
the shire of Renfrue, and to the intent to make some provision for their 
maintenance and advancement in the world, and for settling and assuring the 
premises hereinafter mentioned, and for (142) other good causes and 
considerations me hereunto moving, I, the said John Allison, from a full 
confidence I have in the honor, honesty and integrity of them the said 
Frederick Nash, Abner B. Bruce, David Yarbrough and William Shaw as aforesaid, 
and for the consideration of the sum of five shillings to me in hand paid by 
them the said Frederick Nash, Abner B. Bruce, David Yarbrough and William Shaw 
as aforesaid; that is to say in trust the following property, to wit: my 
corner house now occupied by John Van Hook & Co., also my new house lately 
occupied by William Huntington & Co., both being on part of lot No. 6, in the 
town of Hillsborough, be sold, separate or together as may best suit the 
purchaser and enhance the price; also all my stock I now have and possess in 
the State Bank of North-Carolina at Raleigh, that is to say, if I do not sell 
said stock before my decease, consisting of twenty shares, amounting to two 
thousand dollars, together with all the profits or emoluments that may be due 
thereon; I, the said John Allison, do hereby assign over and convey to them, 
my trustees, for the following purposes hereinafter mentioned, to wit: that 
immediately after my decease, or as soon after as may be found convenient, I, 
the said John Allison, do hereby authorize my trustees aforesaid to sell my 
bank stock as aforesaid for the best price that can be got for it, and convey 
or transfer the same to the purchaser or purchasers thereof and to their heirs 
and assigns forever, and to do and transact all matters and things touching 
and concerning the premises agreeably to the laws and regulations that now 
are, or may hereafter be established or required by the directors of said bank 
touching and concerning the premises, in trust and confidence that immediately 
after my decease, or as soon afterwards as may be found convenient, they the 
said trustees aforesaid are hereby required, empowered and authorized to sell 
the corner house now occupied by John Van Hook & Co., also my new house lately 
occupied by William Huntington & Co. with the appendages (143) thereunto 
belonging, described as aforesaid, for the best price that may be got for 
them, and to convey to the purchaser or purchasers thereof, their heirs and 
assigns forever, as fully to all intents and purposes as I myself might or 
could do were I living; provided always, that as soon as the money is received 
arising from the sale of my stock I have in the State Bank, so soon as the 
money shall be collected, shall be remitted by bills of exchange or otherwise, 
as my trustees may deem proper for the safe conveyance, and the bills to be 
drawn in favor of and made payable to James Craig, Junior, manufacturer, in 
the town of Paisley, shire of Renfrue, North Britain; and farther, my trustees 
are hereby required and directed that out of the monies arising from the sale 
of my houses and lots as aforesaid, two hundred and fifty dollars be paid to 
my nephew, James Allison, and one hundred dollars to Abner H. Bruce, for the 
purposes mentioned in my will; and fifty dollars to Mary Allison, mother of 
James Allison, of the state of Delaware (if living at my death); and my said 
trustees are hereby directed that all the debts due to the said John Allison 
at his decease, either by note, bond, house rent, money on hand or otherwise, 
they, my said trustees, are hereby empowered to oollect, sue for, and receive 
the same into their own hands, and also be placed with the money arising from 
the sale of my lots and houses and bank stock, and the balance of what may 
remain in their hands, after what I have hereby enjoined on them to perform, I 
do hereby require and direct to be remitted to the said James Craig, Junior, 
manufacturer, in the town of Paisley, North Britain, shire of Renfrue; and the 
said trustees are hereby authorized and directed to retain to their own use 
out of the monies that may come to their hands, a sufficient compensation for 
their trouble in informing and executing the trust hereby reposed in them, and 
also for discharging any debt that may arise from a sick or death bed, and 
physician's aid if required, and funeral charges, &c. And I do hereby request 
of (144) my trustees, that nothing but a plain and decent interment, no 
funeral service shall be performed at my interment, but what a Gospel Minister 
or private christian may think fit and appropriate for such a solemn occasion. 
And this deed of trust shall not affect my last will and testament in favor of 
my nephew James Allison.

I hereby request Mr. William Shaw, of Raleigh, who I have appointed one of my 
trustees, that immediately after my decease, or as soon after as he may find 
it convenient, to write to Mr. James Craig, acquainting him of my decease; and 
I do direct that neither my stock, nor my houses and lots in Hillsborough 
shall be sold until an answer be received from him. And in case of the death, 
inability or removal of any of the trustees hereby nominated and appointed by 
me to act in this behalf, then and in that case, the surviving and acting 
trustees are hereby required and directed to choose another or others in their 
stead; and shall have full power from time to time to act accordingly as the 
case may require. And it is hereby required by him, the said John Allison, 
that this deed of trust be put on record as soon as practicable after my 
decease. In testimony whereof, I, the said John Allison, do hereunto set my 
hand and affix my seal, the day and year first above written."

Afterwards, on the same day, John Allison executed another paper writing in 
the presence of the same subscribing witnesses, with the solemnities required 
by law in a will to pass real estate, and in it referred to the former 
writing; this last writing was in these words:

"In the name of God! Amen. I, John Allison, of the town of Hillsborough, 
county of Orange, and state of North-Carolina, being well advanced in years 
and very infirm, but of sound disposing mind and memory, and calling to mind 
the mortality of my body, do make, ordain and publish this my last will and 
testament in manner and form following, to wit, after all my just debts and 
funeral (145) charges are paid by my trustees appointed for that and other 
purposes, I give, devise and bequeath to my nephew James Allison all the 
personal property I may be possessed of at the time of my death not otherwise 
disposed of, in addition to the sum of two hundred and fifty dollars to be 
paid to him by my trustees, to him, his heirs and assigns forever, except my 
stock in the State Bank at Raleigh, consisting of two thousand dollars, and 
the dividends that are or may become due thereon, also excepting my house 
rents and debts of every description which I have made over to certain 
trustees for other purposes, which will more fully appear by reference to the 
deed of trust bearing even date herewith, and excepting also my negro woman 
slave named Ann, which for divers causes and considerations me hereunto moving 
and meritorious services rendered to me by her in time of sickness, I do 
hereby will, devise and bequeath my said negro woman slave Ann to Abner B. 
Bruce, with this condition, that she be not sold or given away to any other 
person except it be with her consent; but that the said Abner B. Bruce support 
her with food and clothing suitable to her station; and I do hereby give, 
devise and bequeath to the said Aimer B. Bruce the sum of one hundred dollars, 
which sum I hereby direct my said trustees to pay to him for the support of my 
said negro woman Ann when she may, through old age or infirmities, become 
unable to perform the duties of a slave and servant; and should my said negro 
woman die, or be dead before or after my decease, the said sum of one hundred 
dollars notwithstanding is to be paid to the said Abner B. Bruce as a legacy 
out of the real property I have made over to my trustees and directed to be 
paid to him by them.

All my just debts, if any be due and owing to any person or persons whatever 
after my decease, I hereby direct to be paid by my trustees nominated for that 
and other purposes, who are also authorized to collect all debts (146) due and 
owing to me, whether due by bond, note, account, or in any other manner on 
what account soever.

It is hereby declared to be understood, and my will and intention is, that my 
nephew James Allison shall have no claim, right or title whatever to any 
bonds, notes, debts, dues or accounts that may be due or owing to me on any 
account whatever at my decease. I, the said John Allison, do hereby nominate, 
constitute and appoint my friends David Yarbrough and Thomas Clancy, esquires, 
executors to this my last will and testament, hereby revoking, annulling and 
disallowing all former wills and bequests by me heretofore made, hereby 
allowing, ratifying and confirming this only to be my last will and testament. 
In testimony whereof, I, the said John Allison, do hereby pronounce, publish 
and declare, in the presence of God as my witness, and by my well known 
signature written with my own hand and seal thereto affixed, this first day of 
May, in the year of our Lord one thousand eight hundred and twenty-one."

John Allison died without revoking or altering the foregoing writings, and 
they were offered for probate as containing one testamentary disposition of 
the estate of John Allison; prior to which David Yarbrough, the subscribing 
witness, who is the same person mentioned by that name as a trustee in the 
paper writing first set forth, by deed, fully released to the other trustees 
all the interest which he had under the writings, and was admitted as a 
witness, though objected to.

The probate was opposed, and on an issue submitted to a jury, they found that 
the two papers above set forth were the last will and testament of John 
Allison, subject to the opinion of the Court upon the foregoing facts; and it 
was submitted to the Court to say, whether the two paper writings together 
constitute one testamentary disposition or will.

The Court (Paxton, Judge) held, that the paper writing constituted one will, 
and rendered judgment accordingly, from which an appeal was taken to this 
Court.

Seawell, for the appellant.—The questions which (147) appear to present 
themselves in this case, are two.

First, whether the paper writing in the form of a deed be testamentary? 
Secondly, if it is testamentary, whether it was executed in such manner as to 
be sufficient to pass real estate under the act of 1784?

I shall examine the last point first; and this leads to the consideration of 
the admissibility of Yarbrough, the subscribing witness. I contend, that he 
was interested at the time of his attestation, and that this interest has not 
been removed by the release. The amount or quantum of interest to disqualify a 
witness, is of no importance; for it has been wisely said, the law can form no 
scale for the temptation of man. In the present case, the deed, as I call it, 
conveys to the trustees, of which the witness is one, the fee simple in the 
real estate, for they are directed to convey to the purchaser in fee. It 
grants all the bank stock, which they are directed to sell; and all the debts 
they are directed to collect; and out of the monies raised from all these 
sources, they are directed to retain a just compensation for their trouble. It 
is the same, therefore, in effect, as if a certain portion of the real and 
personal estate had been conveyed to them. This interest passes with the 
estate, which may be greater or less according to future events. The fee 
simple passes in trust; the trust is to sell the estate upon the happening of 
a certain event; and then to retain out of the trust fund a compensation for 
services in performance of the trust. The quantum of compensation is to depend 
upon the quantum of service; the right to retain does not arise till the 
services are performed. The release as to this right of compensation cannot 
operate to extinguish the right, when made to the other trustees, because the 
claim to compensation is not against them, it is personal in its nature, and 
when performed is to be retained by the trustee; the trustee is to perform the 
service and pay himself. But this payment or retainer cannot be said to be 
adverse to the rights of the co-trustees; and (148) if it was adverse, as the 
right to retain was only to arise when the services were performed, the 
release could work no extinguishment until the event happened. It would 
therefore seem to me that a release to John Doe, or to the deceased bargainor, 
would have been just as effectual.

But, possibly, it may be contended, that the release is of all the estate 
which the witness took. Then I answer, they were tenants in common by our act 
of assembly, and that being tenants in common, the release cannot operate. 
Again, if the release could operate to convey the estate, yet until registered 
it remains inefficient. And it cannot pass as a bargain and sale, for the same 
reason; to which may be added another, that there is no consideration. In 
whatever light, therefore, this question is examined, it appears to me that 
the witness was more than a naked trustee; that he was interested at the time 
of his attestation, and that his interest has not been removed by this 
release. But whether the release does or does not extinguish the interest, I 
contend, that being interested when he subscribed his name in the presence of 
the testator (if the paper is to be considered as a will), that under our act 
of assembly, it is void as to the real estate. This act declares, that 
no "will or testament shall be available to pass lands, &c., unless subscribed 
by two witnesses, no one of which shall be "interested" in the said devise. 
And if it were asked of a plain man whether a will would be available to pass 
lands, which was subscribed by two witnesses only, one of whom was the 
devisee, where the act of assembly had required that the witnesses should not 
be interested, he would be very apt to say, that the devisee was interested at 
the time he subscribed, and as the act declares that there shall be two 
witnesses, no one of which shall be interested in the devise, the question 
itself contains its own solution. And it certainly does, if we regard the 
enacting words used by the legislature, and their reasons as assigned for 
(149) using them. The preamble is to protect persons "weak in body and mind, 
from the undue influence of those about them," and who so likely to attempt 
this influence as the person intended to be benefited by the will written? And 
though in a strictly legal sense, a will being ambulatory conveys no interest, 
because it has no effect till the death of the testator, yet can the intention 
of the law makers be doubted for a single moment? They were pointing out a 
character, or description of persons, who were to be excluded from attesting 
the will; they are described as interested, because the devise purports to 
give an interest to them; and the character of interest, being confined by the 
legislature to the time of their subscribing in testator's presence, who must 
then be alive, shows what they meant by a witness interested in the devise, 
and is tantamount to devisee. Acts of the legislature are passed for laying 
down rules for the mass of mankind; they ought to be, and are construed 
liberally, and in the most popular sense. It would not, have been necessary to 
have declared that the will should be proven by witnesses not interested at 
the time they gave their testimony; this was already provided for by the rules 
of all evidence; to suppose they were providing against evidence is to suppose 
they meant nothing, if, therefore, these words in the act and their motives as 
assigned, are to be regarded in ascertaining their design, it would seem 
impossible to doubt upon the question. And what are the historical facts in 
support of this intention? Some time previous to the year 1752, by two 
decisions in the Court of King's Bench, Hilliard v. Jennings (Com. Rep., 90, 
94), and also to be found in Ld. Raym. and Carthew; and Anstey v. Dowsing (2 
Stra., 1253), it was solemnly determined under the stat. of frauds, which 
requires wills to be attested by three credible witnesses, that a devisee or 
legatee was not a credible witness; and in the latter case, it was held that 
the tender of the legacy did not remove the objection, and the Chief Justice, 
Lee, in delivering the judgment of the Court, (150) states, that "it was 
objected nothing vests till the death of the devisor; and, therefore, at the 
time of the attestation the witness had no interest; but the answer is, that 
he was then under a temptation to commit a fraud, and that is what the 
parliament intended to guard against." And again, the same Judge adds, 
that "the true time for his credibility is the time of his attestation, 
otherwise a subsequent infamy which the testator knows nothing of would avoid 
the will." The whole Court, in both cases, determining the wills to be void. 
After the determination of these cases, the parliament, in the 25 Geo., 2, 
about the fear 1750, from "an alarm taken by the practitioners," as Mr. Powell 
calls it in his treatise on Devises, 121, when the true principles of the 
statute came to be thoroughly discussed, passed an act, by which the devise to 
the witness is declared to be void, and he rendered competent, to meet the 
case determined by Ld. Holt, in Comyns; and the payment or tender of the 
legacy, or release to the witness, is declared to render him competent, to 
meet the case determined by Lord Chief Justice Lee, in Strange; with another 
provision, as to creditors being witnesses, where the real estate was charged 
with their debts. By the peculiar phraseology of this last mentioned section, 
the act was held to extend only to those who were immediately interested, and 
not to embrace such as had a mere consequential interest; and afterwards two 
other cases, of equal celebrity, came before the Courts; the one before the 
Court of King's Bench, Wyndham v. ChetwynA (1 Burr, 414; 28 Geo., 2), the 
other before Lord Camden, in the Common Pleas, Hinsdon v. Kersey. The case 
before Lord Mansfield was determined in 1757; the case before Lord Camden has 
not been reported, though an abstract of it is to be found in Powell Dev., 
131, but as that contains no date, we are somewhat in the dark as to the 
precise time it was determined, though it seems to have been after the 

11—18

case in Burrow; but it is sufficient to state, that the question was presented 
in both cases, whether a person, (151) on whom the will conferred a benefit, 
was interested by the devise and was a credible witness? These cases, both of 
them, of the deepest interest to landed property, and happening immediately 
before the revolution, and in which Lord Mansfield and Lord Camden maintained 
different sides of the question, the former that the credibility applied only 
where the witness came forward to testify; the latter that it meant 
competency, and related to his attestation; independently of the known 
preference felt by the American people for Lord Camden, can leave but little 
doubt on the mind, that when the act of 1784 was passed, the legislature of 
this state must have had in view this rule, laid down by Lord Mansfield, and 
intended to have conformed as near as possible to the opinion entertained by 
Lord Camden. Indeed, the determination of the King's Bench, in the case of 
Wyndham v. Chetwynd, may be admitted and supported as coming within the 
statute of Geo.; for that was a case where creditors whose debts were charged 
upon the real estate were the witnesses; and Mr. Powell, in his treatise upon 
Devises, 130, observes, that it does "not seem to want the aid of any 
particular arguments to support it, since, upon the general circumstances of 
the case, it falls within the latter provisions of the stat. of Geo. as to 
creditors being witnesses, whose debts are charged on lands or hereditaments." 
But the reasons upen which the opinion of the Court is grounded in the case of 
Wyndham v. Chetwynd, go a great way in supporting the opposition taken in this 
case. Lord Mansfield says (1 Burr., 417), "the question does not depend upon 
the construction of any particular words of the statute. The statute is silent 
as to the capacity of the witnesses, it requires no qualification;" that the 
epithet credible, "is never used as synonymous to competent, when applied to 
testimony, it presupposes the evidence given; and that the statute, by not 
declaring who are or are not credible, leaves the question just as it was; and 
(152) that, therefore, according to general principles of law, the question 
will be, not as to his competency at the time of knowing the fact he came to 
testify, but only, whether he was competent at the time of his examination. 
How different is the act of 1784! The question of who are competent witnesses 
is not left upon general principles; there is a positive incapacity created, 
which, from the very nature of the thing, must be referable to the time of 
attestation. The will is declared to be unavailable, either in law or equity, 
to pass lands, unless subscribed in the presence of the testator by two 
witnesses at least, no one of which shall be interested in the devise of said 
lands. The devise, therefore, of the lands is void, unless the will was 
subscribed by two witnesses who had no interest in the devise. It is the kind 
of witness to be selected which the statute is aiming at, so as to prevent as 
far as possible the chance of bargaining; for under every circumstance which 
can attend a transaction, a witness always will appear in an awkward light, 
who renounces a benefit to become a witness; and the contrivance by which he 
can be indemnified is so easy, that, generally, he is to be considered as 
hired to give testimony, and though he may speak the truth, yet is he 
generally suspected. The act of 1784, therefore, not depending upon whether 
the witnesses be credible, nor whether they be competent upon general 
principles, but requiring that they should not be interested in the devise; I 
take it that, as one of the devisees is one of the two subscribing witnesses, 
the will is consequently informal, and void as to the real estate; and the 
condition of the devise is not altered by the release of the witness; for 
unless executed in the manner pointed out by the act, that is, subscribed by 
two witnesses, no one of which is interested in the same, it is void. And if I 
am correct in this view of this question, it puts an end to the case; but if 
mistaken, it then becomes necessary to examine the remaining point, and that 
is, whether this paper be testamentary. I will not disguise my own convic-(153)
tion, that, according to some cases and dicta in the books, this is by far the 
most difficult undertaking; whilst, on the other hand, if we are to examine it 
upon principle, nothing seems more attainable. The character which every act 
of an individual acquires, depends upon the intention; and though it may 
frequently happen, that by mistake, one thing is done for another; yet that 
which is mistakenly done, if the mistake can be made appear, is never in law 
attributed to the party as his legal act. And hence it may be fairly admitted, 
that if a party intend to make a will, and by mistake executes it in the form 
of a deed, or vice versa, the quo animo shall characterize the act, and it 
shall be considered a will, or a deed, according to his intention. If this 
principle be correct, let this case be examined by it; and here, let it be 
asked, whether, at the time those two papers were executed, it was the 
intention of Allison to sign and execute two will? or did he then contemplate 
that both these papers were to be ambulatory and imperfect until his death, 
and alike subject to his alteration and control? It will not do to say, that 
the instrument shall be a deed, or will, according to the office or purpose it 
is to perform; and that if it relates to managing his affairs after his death, 
it shall be a will; for that would prove too much; it would convert all 
estates upon trust, which were informal, into wills; it would convert those 
numerous cases of gifts by parents to children, after a reservation of a life 
estate, into wills; in fact, it would be the philosopher's stone, converting 
everything which could be done by will, into a will, where the thing was 
attempted, but unskilfully done by deed. The true inquiry, therefore, must 
ever be, what does it appear the party intended to do? to bind himself, or to 
make a will revocable at pleasure? The whole difficulty has arisen from a want 
of legal knowledge when these papers were executed. Allison was probably a 
foreigner, as it appears by the deed the principal objects of his bounty 
resided in Scotland; he was, no doubt, aware, from the decisions made in (154) 
this state, that a devise to aliens would be void; and not having the benefit 
of legal advice, it occurred to him to deed away, as it is commonly called, 
his real estate, debts and bank stock, in trust for his friends in Scotland; 
and to make his will, for the residue of his personal estate. His idea was, no 
doubt, that by this deed he could limit and control the estate embraced in it 
in any manner he thought proper; and as he seems, by the last clause, to 
require it to be put upon record after his death, the probability and fair 
inference is, that he retained the possession of it, and it is expressly 
declared in the deed that it is not to affect this last will and testament. 
From all which it seems to me evident, that he intended to make a deed, and 
not a will, at the time he executed it; wherefore, I should conclude, that 
this Court must make it his will, if it is to have that character. Cases can 
be adduced where papers, in the form of indentures, have been considered 
wills, which no doubt, from the research of counsel on the other side, will be 
adverted to. I will notice some of them, and they appear quite distinguishable 
from the present case. A noted one is to be found in 2 Vez. Jun., 204, 
Habergham v. Vincent. That was where a testator made his will, and devised his 
real estate, with various limitations over, subject to such charges, provisoes 
and conditions as he should by any deed or instrument in writing, to be 
executed by him and attested by two or more credible witnesses, direct, limit 
or appoint, and to no other purpose." Afterwards the testator, by a writing 
every way in the form of a deed, and reciting his will, and that he had 
reserved a power to himself of farther disposing of his property, proceeded 
thus, "know ye, that by this my deed poll, I do direct and appoint that my 
trustees (naming them) shall immediately after my death, &c." Now it is 
evident that the testator here intended to engraft some aftermade provision 
into this will, at the time it was made, which, when done, being in its nature 
testamentary, only to have effect after his death, might be considered (155) 
quoad hoc, as intending to incorporate this paper in his will. This case came 
on first before Lord Thurlow, and he sent the question to the Court of King's 
Bench, whether this last paper should unite with the will? and that Court, 
with Lord Kenyan at its head, determined unanimously that it could not, being 
a deed, and certified accordingly. (5 Term R., 92.) It is true, however, that 
after Lord Thurlow left the Court of Chancery, and was succeeded by Lord 
Loughborough, the case again came on, when the new chancellor, after 
retracting and changing his opinion several times, called in Mr. Buller, who 
had decided upon it in the King's Bench, and Mr. Justice Wilson, and after an 
elaborate argument of council, they determined the latter paper to be 
testamentary. And it is also true, that it is said by the chancellor that the 
case was not full enough when sent to law, though Mr. Buller, who seemed 
somewhat puzzled to account for the decision without relying upon the reason 
furnished by the chancellor, and which is evidently without foundation, 
frankly confesses that the cases "did not occur" to him. What does Lord Kenyon 
say upon this case? He says, that "the latter paper is a deed, and not a will; 
it was called a deed by the party himself; it is stamped, and has all the 
semblance of a deed. Then supposing this to be a deed, there is no case in 
which it was ever decided that a series of limitations, in part created in one 
conveyance, and part in another, can be consolidated." What does Mr. Buller 
say? He very properly remarks, "the only question is, whether the paper of the 
6th of October be a deed, or part of a will? If the former, consider whether 
the will had or had not any effect at that time. The will was dated on the 
5th, the deed on the 6th; the will could have no effect when it was made, nor 
could it till the death of devisor;" and Grose declared himself of the same 
opinion. To say the most of this case, here is the Court of King's Bench, the 
proper forum to determine the question, against the Chan-(156)cellor and two 
Judges; and in the case presented to the King's Bench, all the facts attending 
the execution of deed poll are stated, and in the questions the papers are 
called "instruments," so as to leave the Court of Law fully at liberty to 
characterize them; and that the Court did so, cannot be doubted from Lord 
Kenyan's opinion. Another is Hickson v. Wytham, to be found stated in Powell 
on Devises, 13. That was in the form of an indenture with a consideration of 
5l.; but the latter part of the paper changed its form, and several legacies 
are bequeathed, then executors are appointed, and lastly, it waa signed, 
sealed and published, and delivered as his last will, in presence of two 
witnesses. Another case, stated in the same book, 14 Green v. Proud, which 
might seem to go a greater length, but which, when examined, is still 
determinable by the same rule, that of intention. There the paper was in the 
form of articles of agreement, and was delivered as the act and deed; but it 
appearing that directions had been given to make a will, and a person sent for 
to that end, it was held to be a good will. But the case before the Court 
cannot be considered a will or a testamentary paper, in its design, without 
involving the grossest absurdity. For if it was intended by the testator, why 
not incorporate it into the will which he then professedly made? He seems to 
have been well apprised of the two conveyances. In his will he mentions his 
trust deed, and in the deed he mentions his will; both of which are referred 
to as of the same date. To suppose, then, that when he, in substance, declares 
that he will not dispose of his real estate by will, but by deed, and executes 
at the same time two papers, the one a will, which he calls so and the other a 
deed, which he calls a deed, and that he nevertheless intended two wills, is 
at once to suppose him too great a fool to be capable of making any 
disposition of his property either by will or deed. Upon the whole, the case 
admits of this easy solution; for some reason the testator took upon himself 
to dispose of his estate, partly by will, and partly by died, but in regard to 
(157) the capacity of a deed to carry into effect his wishes, he happens to be 
mistaken; and the quicksand to be guarded against, is an inclination to effect 
his intention as gathered from the deed, at the expense of the law. To carry 
into effect the wishes and designs of every man, where they were intended for 
benevolent purposes, must be a pleasant office to every Judge. It calls into 
action the noblest qualities of the heart, and we strive to see things against 
the conviction of our own senses. The injurious influence of these feelings 
has often been felt, where departures from a known rule, for the sane of 
justice, have become so various as to destroy all rule. The rules of law are 
the rides of property, and the less they savor of construction, the more 
wholesome in their operation. Where the law has given a definite signification 
to certain terms of art, they are, when used, to be received in that sense, 
unless it shall appear they were used through mistake. A will is a term of 
art; and so is a deed. They are both conveyances known to the law, and are 
governed by distinct and separate rules. The difficulty often occurs in 
determining the nature of the conveyance, and in law as in physic much 
mischief may happen in mistaking the case. If Allison knew he was making his 
will, at the time he executed the paper first stated in the record, it is 
equally true that he knew, and intended not to make his will, but his deed, 
when he executed the latter paper. And after all, what are the particular 
hardships in this case, which should excite an interest in favor of a will? To 
say the least of it, it is an attempt to do indirectly, what the policy of the 
law forbids directly; it is to give to a set of aliens the benefit of real 
estate; not by holding out a temptation to migrate and become citizens of the 
United States; but to enable them to withdraw from this country its whole 
value without leaving anything in return, to the exclusion of heirs, citizens 
of the state and capable of inheriting.

(158) Hawks, for appellee.—Two inquiries are here presented; the first, is the 
paper, in form a deed, to be considered testamentary? and if it be, secondly, 
is the attestation sufficient under our law? It is in this order that the 
questions naturally arise; for an examination to ascertain whether a paper be 
attested with the formalities required by law in the execution of wills, is 
quite unnecessary, if the paper attested is not in law a will; and as the view 
taken by the counsel for the appellees on both questions coincides, I shall 
not trouble the Court with observations on both, but shall confine myself to 
the first question, leaving to my colleagues the discussion of the second.

And on the first point made, we affirm, that so far as the form, of the 
instrument offered as a will is important, there can never be but one inquiry, 
viz., does the paper on its face show that its maker intended thereby to 
provide for the disposition of his estate after death?

Adverting to English cases decided since these statutes on the subject, we 
find, that at no period has any form of words been deemed essential to make a 
testamentary disposition or will. A will was defined to be, "a declaration of 
the mind in disposing of an estate, and to take place after the death of the 
testator" [Carthew, 38); and in accordance with this definition, a series of 
decisions is to be met with, in which writings, in almost every variety of 
form, and agreeing only in the grand essential of indicating a disposition 
after death, have been held wills. Thus, a writing in the form of a deed has 
been held a good will. Hickson v. Witham (Finch, 195): Ridgen v. Vallier (2 
Ves., 252); 1 Ch. Cases, 248. So also in the form of an indenture. (Dyer, 166; 
2 Leon, 159.) In the form of articles of agreement (Greene v. Proude, 1 Mod., 
117); 3 Keble, 310. It may be in the form of a letter (Moore, 177); 
Habberfield v. Browning (4 Ves. Jun., 200, note). And an endorsement upon a 
promissory note, "I give this note to A," may be proved as testamentary. 
Chaworth v. Beech (4 Ves. Jun., 565). In North-Carolina, the question is not 
new, and it has been here held that a will may be in the form of a deed of 
gift. Executors of Henry v. Ballard & Slade (4 N. C., 595).

It may hence be assumed without fear of contradiction, that had the act of 
John Allison stopped with the execution of the first paper, it alone might 
have been supported as a testamentary disposition; but it was but part of an 
act, for after making it, he immediately proceeds to the execution of the 
second paper, referring in it distinctly to the contents of the first. What 
was the effect of such language of reference, is our next enquiry; and on this 
subject we assert, that if a testator in his will, refers expressly to any 
paper already written, and has so described it that there can be no doubt of 
its identity, and the will is formally executed, that paper makes part of the 
will whether executed or not. Methum v. Duke of Devon (1 P. Wms., 529, Cox's 
Kd.); Smart v. Prujean (6 Ves. Jun., 560(; Habergham v. Vincent (2 Ves. Jun., 
205; S. C.; 4 Brown, 353); Milledge v. Lamar (4 Dessaus, Ch. Rep., 623).

An examination of the two papers executed by John Allison shows a distinct 
reference in the last to the one first written, and there can be no doubt of 
the identity of the paper referred to, from the description given of it by 
Allison himself; and the decision below is sanctioned both by reason and 
authority, for the proposition laid down by us on this subject of reference, 
is in the very words of Mr. Justice Wilson, in the opinion which he delivered 
in the case of Habergham v. Vincent.

Badger, on the same side. — I propose to discuss the second question, was the 
will duly executed to pass real estate?

Hall.—Is the paper in the form of a deed of trust revocable?

Badger.—It is clearly testamentary in itself, as we think has been 
satisfactorily shown, and, being testamont-(160)ary, is revocable. But the 
will made the same day having referred to it, and being insensible with

11—19


out it, what it would be of itself is not important. For by the words of 
reference it is made part of the will, as entirely as if incorporated with it 
and written at length on the same sheet; whatever be its character and 
whatever would have been its operation if it stood alone. It becomes a part of 
the will because of the reference, and not on account of its own character; 
because the will needs the explanation afforded by it, and the testator refers 
to it for that explanation. This effect of words of reference is not peculiar 
to wills. In a case reported in East (Weeks v. Maillardet, 14 Vol., 568), the 
defendant, by articles under seal, covenanted to deliver to the plaintiff "the 
whole of his mechanical pieces as per schedule annexed." The schedule was not 
annexed at the execution of the deed; and upon the plea of non est factum, it 
was held that the schedule formed part of the deed, which would not be 
sensible without it, and that the articles, though sealed and delivered, were 
not the deed of the defendant without the schedule. Yet the schedule possessed 
no one requisite of a deed; it was not sealed nor delivered, it passed 
nothing, but was a mere list of pieces. But being referred to by an 
instrument, it became part of that instrument, and the latter being a deed, 
the schedule was, by force of the reference, part of a deed. And so of the 
will, and the paper referred to by it, whatever may be the form or character 
of the paper standing by itself.

Court.—Proceed with the argument you designed to offer.

Badger.—The act of 1784 requires a will of lands to be executed in the 
presence of "two witnesses at least, no one of which shall be interested in 
the devise of the lands."

What sort of interest is here intended? As no explanation is given of the act, 
the words were not used in any peculiar sense. The legislature presumed that 
the word interest had already a fixed and precise signification. (161) Where 
is that signification to be sought? As the language is that of the makers of 
the law, addressed to the Judges and to be expounded by them, the meaning is 
to be sought for in the common law. But the subject of legislation is the 
qualification of witnesses. The interest referred to is, therefore, such an 
interest as, according to the rules of the common law, will disqualify a 
witness. It seems clear, however, that the interest to disqualify must be 
beneficial. A mere legal estate without benefit, whether in an executor or 
trustee under a will, or grantee in a deed, is no disqualification; and it 
will be shown that Yarbrough had no other interest.

Executor may be a witness, unless he has the surplus given him by the will, 
(for Hale, Anonymous, 1 Mod., 107.)

Executor in trust, though he has acted and made himself liable to actions, is 
a good witness to support the will. Lowe v. Joliffe (1 Bl. R., 365).

A will being lost, the Spiritual Court examined the executors as witnesses, 
and held good evidence by Holt, Ch. J., St. Legar v. Adams (1 Ld. Raym., 731).

Where there are two wills of different dates, held, that the person who had 
administered under the first will, was a competent witness to prove a codicil 
subsequent to both wills, by which the second was revoked and the first 
republished; although he had, by acting under the first will, subjected 
himself to actions as executor de son tort, in the event that the second was 
the true will. Bailie v. Wilson (cited by Ld. Mansfield, 4 Burr, 2254).

Grantee, where he appears to be a bare trustee, is a good witness to prove the 
execution of the deed to himself. (Per Ld. Cowper; Gross v. Tracy, 1 P. Wms., 
290).

"It is clear that an executor may be a witness." (Per Wills, J., in Goodtitle 
v. Welford, Doug., 141.)

Executor in trust is a competent witness at law. (1 Ball & Beatty, 100, 414.)

But it is said Yarbrough has a beneficial interest, because the trustees are 
authorized by the will to re-(162)tain a compensation for their trouble.

Answer, first. No legacy is given. If Yarbrough were dead, nothing would pass 
to his representatives. It is a mere contingency upon his acting, and then a 
quantum meruit for his labor. There is no bounty, no benefit, no fixed sum. 
Secondly. The will gives him nothing; for had this provision been admitted, 
the law would have allowed to the acting executors commissions for their 
trouble. Thirdly. The will itself shows it to be a mere appointment to a 
troublesome office, and not an interest which could be transferred by law, or 
assigned by the trustee; for it is provided, that in the event of the death, 
removal, &c., of any of the trustees, another shall be appointed in their 
stead by those surviving or remaining.

But if Yarbrough had ever such interest as would, if subsisting, disqualify, 
we insist, that by the release it was discharged, and the will is well proved.

As English cases will be referred to in support of this proposition, it is 
necessary first to ascertain if the English statute and Court are so far alike 
that those adjudications are authority here.

The expression in the stat. of Charles is, "three or four credible witnesses." 
Whatever doubts exist as to other questions upon this statute, it is clear 
that credible means competent, and that competency is implied by the word 
witness. There are two causes which produce incompetency, infamy and interest. 
An infamous person is clearly not a witness under either of the statutes, for 
infamy destroys all ability to testify. As to interest; under the English 
statute, if the witness be interested he is incompetent; and if without 
interest, he is competent. So under our statute. Interest makes him 
incompetent; and if incompetent it can only be because he is interested. The 
two acts, then, are (as to this question) equivalent, and decisions upon the 
one are illustrations of the meaning of the other.

The judgment of the Court of King's Bench, de-(163)livered by Ld. Mansfield in 
Chetwynd v. Windham, is in point to establish the proposition laid down by us. 
(1 Burr, 414.)

In this admirable opinion, the distinction is clearly stated between infamy 
and interest, as sources of incompetency. The former, as positive 
disqualification of the person; the latter, only a ground of rejection, upon a 
presumption of bias being produced by it. And hence, when the witness 
voluntarily releases his interest, from which the bias was upposed to arise, 
the presumption is repelled, and the opposed bias shown not to have existed at 
all; for "presumptions stand no longer than till the contrary is proved."

The opinion of Lord Camden, in the case of Doe v. Kersey, is relied on by the 
other side, and stated as of greater authority and decisive against us. (For 
the opinion in Doe v. Kersey, vide Cunningham., L. D, verb. Will, where it is 
printed at length.)

The first observation that occurs is, that this opinion was not the judgment 
of the Court. The three other judges united in a contrary view, and the Chief 
Justice dissented. It is not, therefore, authority.

Again, the question of the effect of a release, was not presented in the case, 
for the interest, whatever it was, continued up to the time of the trial in 
the same plight as at the attestation of the will; consequently the opinion 
was a mere obiter dictum. It was delivered (as is intimated not obscurely in 
the opinion itself) merely to measure strength with Lord Mansfield, by 
contesting the doctrine advanced by him in Chetwynd v. Windham.

But what is the difference between them? They both agree that credible means 
competent. Lord Camden holds that competency "is essential at the time of the 
attestation." So does Lord Mansfield, for he lays down the rule "that a person 
shall not entitle himself to a devise by virtue of his own subscription, which 
at the time of subscribing he could not have proved by his examination." (1 
Burr, 424.)

But clearly the witness who has a legacy is com-(164)petent to prove the fact 
that the will was made at the time of attestation. Suppose the question if the 
will had been made, to arise living tho testator (as upon a wager), could it 
be objected that the wituess then had an interest? Until the testator's death 
the will is inchoate, ambulatory, may be revoked; the witness may die and the 
legacy lapse. Nothing passes till the testator's death. Until that event, the 
legacy is a mere possibility, not an interest. But it is said by Lord Camden, 
that the statute was meant to protect testators against fraud; and Lord Ch. J. 
Lee observes (Austey v. Dowsing, Strange, 1253), that at the time of 
attestation the witness is under a temptation to commit a fraud. Now, it may 
be observed these Judges have left the ground of that interest which 
disqualifies, and have assumed the general and indefinite position of a 
temptation to commit a fraud, by which it is clearly admitted that there is no 
interest in the witness. But Lord Mansfield furnishes a conclusive answer. He 
observes, "the presumption of bias arises at the time of subcribing;" 
but, "during the life of the testator, devised are mere possibilities," 
and "the presumption of bias from the possibility, is answered by the fact 
when it becomes an interest."

Lord Camden stigmatises this doctrine of Lord Mansfield, as "pregnant with 
mischief and absurdity." From himself, therefore, we have a right to expect a 
doctrine free from both. But what is his construction? A witness having a 
legacy, is presumed under a bias to commit a fraud; the testator dies, and the 
witness refuses the legacy and releases all right to it; and still he is 
presumed by his Lordship to have been tempted by it to a fraud. What is the 
fraud intended? To fabricate a will? What the motive? To procure a legacy. How 
is the witness to carry this fraud into effect? By renouncing the legacy which 
was the only motive to contrive or execute the fraud. A judge whose 
construction of a statute against (165) frauds leads to such results, can have 
little right to object to the judgment of another on the score of absurdity.

But farther, the opinion of Lord Camden, taking it as law, does not affect 
this case; for he admits the general practice of Westminster Hall had been, 
that a release was sufficient; and says, "this practice is a weighty argument, 
and should never be slighted." But he alleges, the practice to have been 
confined to money legacies, and did not extend to a witness who was a real 
devisee. In our case, the compensation, if a legacy, is but a money legacy.

The statute, 25 Geo., 2, ch 8, furnishes a strong support to the construction 
contended for by us. The act not only proscribes a rule as to the execution of 
wills thereafter to be made, but expounds the meaning and intent of the 
statute of Charles as to wills already made. It declares that a witness who 
shall have released his legacy, whether the same were charged upon lands or 
not, shall be admitted as a witness, &c., within the intent of the said act.

The case of Austey v. Dowsing, cited on the other side, was where the legacy 
and an annuity charged upon lands, were neither paid nor released; and the 
decision of the Court was merely that a tender of the legacy to the witness, 
which was refused, did not restore the competency. The reasoning of Lee, Ch 
J., was not of the other Judges. (Vide 1 Burr 427.) Besides, in that case a 
writ of error was brought, and the Judges being divided in opinion, a 
compromise ensued, and no final decision was had. (Vide Prize V. Lloyd, 1 Ves. 
Jun., 503.) The opinion of Lord Hardwicke was the same with that of Lord 
Mansfield. Ibid.)

We are supported, then, by the general practice of Westminster Hall, the 
resolutions of the Courts, and a legislative exposition of the statute of 
frauds, and opposed only by the opinions of Lord Camden and Ch. J. Lee, in 
which the brethren did not concur.

But farther, if the technical strictness demanded (166) on the other side is 
to obtain; if the appointment with compensation for the trouble of executing 
it, when the person appointed has renounced and therefore never had for a 
moment any right to such compensation, is to be considered a benefit; then we 
ask the application of the same strictness of construction throughout. The 
statute says, "interested in the devise of the lands." But here is no devise 
to any one. There is not an expression which passes any estate. The 
words "assign, &c.," quoted by the adverse counsel, relate, not to the real 
property, but to the bank stock.

If we look to the spirit of the law, there is clearly no such benefit as could 
have been within the contemplation of the legislature. If we are to confine 
ourselves to the words, a devise of lands only is mentioned, and here we have 
only a naked power to sell, coupled with no legal estate. And in either way, 
the objection must fail, and the will be established.

Gaston, on the same side.—The paper commencing "Know ye," is a will in itself. 
A will is defined to be a lawful disposing of that which one would have done 
after death. (1 Swimb., 25, Co. Lit., Ill; Carthew., 38.)

The paper here alluded to passes no immediate right, either of present or 
future enjoyments; it does not contain the words, "bargain and sell," nor any 
thing equivalent thereto. (Shep. Touch., 219.) As to the property mentioned in 
the paper, the lots of land are not conveyed thereby, but authority is given 
to sell them after his death; the bank stock, if not sold before his death, is 
assigned to be sold "after my death." The language used throughout shows, that 
the disposition of this property after his death was what he designed to 
declare. Thus he says, "giving my trustees as full power as if I were 
living," "the money to be applied to the purpose mentioned in my will," "debts 
due, at my decease, to be col-(167)lected," "physician's bill and funeral 
charges to be paid:" and he concludes the paper with directions relative to 
his interment. There is no proof that this instrument ever passed out of his 
hand's during his life; and he gave directions to have it recorded after his 
death.

That paper is itself a will, follows from the clearest elementary principles 
and from authorities; for, as has been observed, there is no appropriate form 
of instrument required for a will; and to the authorities already cited for 
the appellee, may be added the following:

A man beyond sea wrote a letter, in which he expressed his wish that his lands 
after his death, should go in a particular manner; held to be a good will. 
(Moore, 341, pl., 363; 2 Danv. Ab., 539; Gilb. on Div., 85.)

So a writing in the form of a bill upon a banker for 100l. to buy mourning for 
the wife of the writer, has been held a will. Lawson v. Lawson (1 P. Wms., 
440).

So also in the form of a letter stating the contents of a will, but adding a 
farther expression of his wishes. Hall V. Hewer (Ambler, 203).

So, in the form of a deed of gift, not to take place until death, accompanied 
by the delivery of six pence by way of putting grantee in possession. Shargold 
v. Shargold (2 Ves., 440)

See also the cases of Clymer v. Little (1 W. Bl., 345), and Peacock v. Monk (1 
Ves.), establishing the doctrine for which we contend: and in the celebrated 
case of Habergham v. Vincent, already referred to, the language used is 
remarkably strong. "It is immaterial whether testator calls it a deed or a 
will; if it does not take effect on its execution; if the interest, powers, 
and capacities, which it designs to create do not arise until after death, 
although there be express words of immediate grant, and a consideration to 
support it as a grant; if on the whole, the intention is, that it shall have a 
future operation after death, it must be regarded as a will." And to the same 
effect are all the respectable elementary writers. (Com. Dig., (168) "Devise," 
A. 1 D. 1, 4 Cruise, 156; Powell's Swinb,77; Roberts on Wills, 73.)

But this instrument, it not in itself a will, is expressly referred to, and 
adopted, confirmed and incorporated into a will, dated and executed the same 
day before the same witnesses: it is as completely incorporated as if repeated 
verbatim et literatim. Habergham v. Vincent, and Milledge v. Lamar, already 
cited, and Pow. on Dev., 23.

But it is said that the test of a will is its revocable quality; and it has 
been asked if this instrument could have been revoked. It is a mistake to say 
that this is the test of a will, for an instrument may be revocable and yet 
not a will; e. g. a deed reserving a power of revocation, a letter of 
attorney. An instrument may be testamentary, and yet not being, wholly so, may 
in part be irrevocable. Thus, a deed for life is made, afterwards a will 
referring to it, and declaring that the testator confirms the disposition made 
by the deed, and after the death of the grantee gives the property to his 
heirs; it cannot be doubted but that, he takes a fee simple under the will; 
yet the first instrument is not alsolutely irrevocable.

But in this case all the disposition of the paper are revocable. It is not 
stated, and therefore cannot be presumed, that Allison ever delivered the 
paper so as to make it his deed, and in fact the opposite counsel have agreed 
on the fact of his having retained it. Now without delivery, if the words were 
sufficient, nothing passed, and until the owner had divested himself, he might 
do as he pleased with the property. But if he had delivered the paper, nothing 
passed, for there are no operative words in it to give an estate as to the 
lands for one moment, it is a mere power of attorney; the trustees could not 
have turned Allison out, or brought an ejectment against any person in 
possession. As to the bank stock, the retaining an unqualified power to sell, 
makes the assignment to the trustees, for sale after his death, purely a naked 
power. (169) Ide v. Ide (5 Mass. R., 500). Why in general is a will revocable? 
Solely, because it is to have no operation until death. (Lit., s. 168; Co. 
Lit., 12 a. b.) But be this as it may, after the incorporation of this paper 
into the will, if before it had been a deed inter vivos, it 

11—20

then had a new and additional operation; it is made part of that will, and 
whatever it cannot effect as a deed, it shall then effect as a testamentary 
disposition.

The second question which has been made is, was this will duly attested, 
Yarbrough being one of the witnesses; can it operate to pass real estate? The 
answer to this question depends on the construction of our act of 1784, and of 
the words in it, "no one of which shall be interested in the devise of said 
lands."

Unless it can be shown that Yarbrough is incapacitated, the will is well 
attested. The interest which excludes must be certain and fixed. Did he then 
ever have an interest in the devise of these lands? The intention of the 
legislature in requiring an exemption from interest in the witness, shows, 
that by interest they meant, not a nominal, but a beneficial interest. The 
interest which by the common law incapacitates a witness must be a beneficial, 
not a formal one. (Gilb. Ev., 123: Peaks, 156, 162; 1 Mod., 107; 12 East, 250; 
7 Mass. R., 398; 4 Taunt., 326.) Here no beneficial interest is given to 
Yarbrough; he is a mere attorney, taking nothing under the will, entitled to 
nothing, except compensation for trouble and services, should he ever render 
them.

Again, if mere formal, technical interest will exclude, he has not here (as 
will be found on examining the instrument) even such an interest given him, it 
amounts to a mere naked power to sell. (Lit., 169; Co. Lit., 112; a. Pow. on 
Dev., 292, 3, et. seq.)

A mere agency is offered to him, no legacy or devise accompanying it, nothing 
but a compensation for trouble, and that not fixed, but a mere quantum meruit, 
and necessarily conditional on his acceptance of the office and (170) 
performance of the duty. It is not accepted, he refuses to perform; and where, 
we ask, is his interest under these circumstances?

Yarbrough has released. The great controversy in England whether a witness 
interested could release, arose on the word "credible"' in the British 
statute; and even then, the entire weight of authority is in favor of the 
release. The case of Hilliard v. Jennings (1 Ld. Ray), cited on the other 
side, decides nothing about it either directly or indirectly. Austey v. 
Dowsing (2 Strange), is not founded on it; it contains only an obiter remark 
of Ch. J. Lee, and was compromised during the pendency of an appeal. (See 1 
Ves. Sen., 503.) In Doe v. Kersey, Lord Camden was alone. (See Powell, 132.) 
Lord Hardwicke clearly thought otherwise; (1 Ves. 503, and 2 Ib. 374), as did 
Lord Mansfield and the Court of K. B. in Wyndham v. Chetwynd (1 Burr); and 
Goodtitle v. Welford (1 Doug., 140). See also 2 Bay. 448; 3 Har. & M'Hen., 
513; 5 Mass. R., 228, 9.

Our act of 1784 uses no such doubtful word, but states what disqualification 
on the score of interest shall incapacitate the witness. The act cannot well 
refer except to the moment of death, "shall be interested, &c.," besides the 
witness can take no interest until death.

The act makes this species of interest disqualification; but one of the same 
character with all other disqualifications on the score of interest. As to 
these disqualifications, how did they stand? A legatee could not prove the 
will and keep his legacy, nor a devisee be a witness without a release. So by 
our law, lands shall not pass, unless the will be attested by two witnesses, 
no one of whom shall take. The presumption is, that all will take a benefit, 
but this presumption is entirely removed by a release.

But farther, if any interest is given to Yarbrough, it is a pecuniary legacy, 
which affects not the attestation to the devise.

Taylor, Chief Justice.—If may be satisfactorily (171) inferred from the cases 
cited, that any writing by which the intention of the party to dispose of his 
estate after his death appears, will amount to a devise, provided such 
intention be consonant to the rules of law, and the writing have the 
formalities required by the act. It is of no moment whether the testator would 
have called the instrument a deed, or a will. The true inquiry is, how will it 
operate? and if the provisions in it are testamentary, it must operate as a 
will. The difference between a deed and a will is this: the former must take 
place upon its execution, or never; not by passing an immediate interest in 
possession, for that is not essential; but it must operate as passing that 
interest when the deed is executed. Thus, where a father covenants to stand 
seized to the use of his son, reserving a life estate to himself, the deed 
takes effect at once, by passing an interest to the son. But a will can only 
operate after death. Does this instrument convey to the trustees any power or 
capacity of acting till after the testator's death? It assigns over and 
conveys to the trustees, what? not any property; but "that immediately after 
his decease, or as soon thereafter as may be found convenient," he authorizes 
them to sell his bank stock and real estate, and apply the proceeds in the 
manner he directs. They are not, authorized to take a single step in the 
business of his estate, till after his death; nor does he part with, or 
impair, his dominion and control over the property while he lives; indeed, it 
is a plain manifestation of what his intent was, that he directs the 
instrument to be recorded, only after his death; and there is no reason to 
believe that he ever parted with the possession of it during his life time.

In Hixon v. William (1 Ch. Ca., 248), the writing was in the form of an 
indenture, and used the terms "grant, bargain and sell," yet it was decreed to 
be a good will. In Proude v. Green (1 Mod., 117), articles of agreement, which 
used the word "give," and were delivered as an act and deed, were held to be a 
will. The cases (172) generally established the position, that whatever the 
instrument may be called by the party, or however it may be considered by him, 
if the intention upon the whole be, that it shall not operate before his 
death, it is then testamentary. In addition to this, there is much weight in 
the reasoning, that this paper is so plainly referred to and incorporated in 
the will, as to become a part of it, although it had not been duly executed. 
But then it is indispensable, that the will should be executed according to 
the directions of the act of 1784. This is the only part of the case in which 
I have entertained any doubt; but after much consideration my opinion is, that 
it is not attested by two such witnesses as that act requires. If the act had 
merely required the will to be attested by two witnesses, the common law would 
have instructed us, that their competence at the time of the proving the will, 
would have been sufficient. The words which follow in the act, two witnesses 
at least, no one of which shall be interested in the devise of said lands, 
must be supposed to have been inserted for some purpose; and this could only 
be to refer to their competence at the time of attestation.

The preamble to this section of the act, professes to guard against the undue 
influence of those about a testator in his last moments; and it must be a 
strong inducement to attempt the exerise of this influence, if a witness is 
interested at the time of his attestation. The subsequent act of 1784, 
asserts, that it was the design of this requisite of the attestation of 
witnesses, to prevent fraud and imposition.

The statute of frauds required a will to be attested and subscribed in the 
presence of the devisor by three or four credible witnesses. Much difference 
of opinion existed whether this competence (for so the word was understood) 
should be referred at the time of the attestation, or to that of proving the 
will; and I think it difficult to read the cases on this subject without a 
conviction that the weight of authority, as well as reasoning, is in support 
of (173) the former opinion. In one of the earliest cases to be met with on 
this question, the testator disposed of his real estate by will, and gave to 
one J. H. and his wife 10l. each for mourning, with an annuity of 20l. to E. 
H. the wife of J. H. The will was attested by three witnesses, whereof J. H. 
was one. The legacies and satisfaction for the annuity were tendered and 
refused. The question upon the special verdict was, whether or not the will 
was well attested according to the statute of frauds. The Court was 
unanimously of opinion, that the right to devise lands was not a common law 
right, but depended upon the powers given by the statutes, the particulars of 
which were, that a will of lands should be in writing, signed and attested by 
three credible witnesses, in the presence of the devisor; that these were 
checks to prevent men from being imposed upon; and certainly meant that the 
witnesses to a will (who are required to be credible) should not be persons 
entitled to any benefit under that will. In answer to the objection that 
nothing vests till the death of the devisor, and therefore at the time of the 
attestation the witness has no interest, the Court said, that he was then 
under the temptation to commit a fraud, and that is what the parliament 
intended to guard against; that the true time for his credibility is, the time 
of his attestation; otherwise a subsequent infamy, which the testator knows 
nothing of, will avoid his will. Austey v. Dowsing, (2 Stra., 1254).

Lord Camden's opinion, though at variance with that of the Judges who sat with 
him in the case of Hindon v. Kersey, deserves much weight, not only from its 
cogent reasoning, but from the circumstance that the legislature, within a few 
years after its delivery, adopted its policy and principles, by destroying the 
interest of the subscribing witness, whatevor it might be at the moment of 
attestation. This was by the act of 25 George, 2, passed about thirty years 
before our act of 1784. The whole controversy must have been known to many 
members of the legislature of that day, and I think they had the (174) same 
policy in view though they have pursued a different course to attain it. The 
question to be asked on the will is, whether the testator was in his senses 
when he made it, and that is the important moment when vigilance and caution 
are most necessary in the witnesses, and when their minds should be most free 
from any bias that might warp their judgment. In other cases, according to the 
opinion quoted, the witnesses were passive; here they were active, and in 
truth the principal parties to the transaction. The testator was entrusted to 
their care. The design of the statute was to prevent wills from being made, 
which ought not to have been made, and always operates silently by intestacy. 
It is true the design of the statute was to prevent fraud, though no fraud 
appeared in that case, yet it prescribes a certain method, winch every one 
ought to pursue to prevent fraud. As to the minuteness of the interest, as 
there was no positive law which was able to define the quantity of interest 
which should have no influence upon men's minds, it was better to have the 
rule inflexible, than to permit it to be bent by the discretion of the Judge.

Under this construction of the act of assembly, which, however reluctantly, 
since it disappoints the will of the testator, I think the true one, my 
opinion is, that the witness was disqualified, since he, and the other 
trustees, were authorized to retain a sufficient compensation for their 
trouble. This gave them an interest in the devise of the lands, and would, 
upon common law principles, render them incompetent to prove the will, as to 
the land. Though in England, the office of executor who has no commissions or 
a legacy, is a burthensome one, and never injurious but from mismanagement.

Hall, Judge.—There can be no doubt but that the paper writing which purports 
to be a will of the personal estate, was properly proved in the County Couit, 
(175) and that the judgment given thereon in the Superior Court affirming, it 
was correct. But the question in reality submitted to this Court is, whether, 
first, the paper writing purporting to be a deed, was in its nature 
testamentary; and if so, secondly, whether it was legally proved, as the law 
prescribes. My opinion on the last question renders it unnecessary to give an 
opinion upon the first.

The second question, in substance, is, whether David Yarbrough, who is a 
subscribing witness to that deed, with William Harlan, the only other 
subscribing witness, was in law a proper witness to prove its execution, he is 
one of four trustees named in that, instrument, for the purpose of selling the 
real estate of John Allison, who executed it; and there is a clause in it as 
follows: "and the said trustees are hereby authorized and directed to retain 
to their own use out of the moneys that may come to their hands, a sufficient 
compensation for their trouble in performing and executing the trust hereby 
reposed in them, and also for discharging any debt that may arise from the 
sick or death bed, or physicians' aid if required, and funeral charges."

By the act of 1784, New Rev. ch. 204, sec. 11, it is enacted, that no last 
will or testament shall be good, in law or equity, to convey any estate in 
lands, &c., unless such tvill shall have been written and signed by the 
testator, and "subscribed in his presence by two witnesses at least, no one of 
which shall be interested in the devise of said lands. This act is supposed, 
by the plaintiff's counsel, to have a resemblance in principle to the devising 
clause of the English statute of frauds, in which it is declared, that all 
devises shall be attested and subscribed in the presence of the devisor by 
three or more credible witnesses, or else shall be utterly void and of none 
effect. The point has been much controverted in England, whether the 
subscribing witnesses should be credible or competent at the time of attesting 
the will, or at the time when (176) called upon to prove its execution. The 
question has also been examined with ability by the counsel in this case. I do 
not think it necessary to give any opinion on it, because I think the act of 
1784 puts the question at rest. I will only say, that if the test of 
qualification is to be applied at the time when the execution of the will is 
attempted to be proved, it appears to me that the term credible, is a dead 
letter in the statute, because the rules of evidence would not permit any 
other competent witnesses (which Ld. Mansfield, in 1 Burr, 414, says the term 
credible witnesses in the statute means), to be examined to prove the 
execution of a will, if the statute had not made such provision.

The same remark may be made as to the act of 1784. If a subscribing witness to 
a will is interested in a devise therein, and afterwards becomes disinterested 
by a release, or by any other means, and thereby a good witness, the clause 
would be inserted for no purpose, which declares that "no one of which shall 
be interested in the devise of the said lands," because if no such provision 
had been made by the act, the rules of evidence would prevent any witness from 
being examined who was not at the time disinterested.

But I think the legislature, by the act in question, intended to remove 
temptation out of the way, and not suffer wills to be made through the 
procurement of fraud; and this they could not better accomplish than by not 
suffering any person to attest a will, unless at the time the person so 
attesting was disinterested in the thing devised.

If, therefore, David Yarbrough had an interest in the instrument he attested, 
at the time he attested it as a witness, the release by him made, will not 
restore his competency.

The clause which I have before recited furnishes employment for him and gives 
compensation for it. It is like the common case of allowing commissions on the 
amount of the business transacted. The case does not resemble those cases 
where witnesses are received from ne-(177)cessity, and for the sake of trade, 
as when a person is employed to sell goods, and is to have a certain per cent, 
on the amount sold, he is competent to prove the contract of sale. (9 H. Bl., 
590; 3 Wils., 407.) See Guillim Bac. "Evidence B.;" Norrid' Peake, 240. It is 
very true, the interest of the witness in this case is very small; but this 
Court, on that account, cannot overlook it; it cannot judge between different 
degrees of interest. If this objection was overruled, at some future time a 
witness somewhat more interested might be offered; and soon, till the rule 
which rejects interested witnesses would be done away altogether. The rules of 
evidence are of great consequence. Lord Kenyon says, our laws, liberties and 
property depend upon them; they ought to be preserved inviolate and unshaken, 
for those reasons I am of opinion, that David Yarbrough (whose character is 
admitted to be pure and upright) is not in law a competent witness to prove 
the paper writing (which on the face of it purports to be a deed), which, in 
the Court below, has been offered and proved as a will.

Henderson, Judge.—There is no dispute as to the instrument in the form of a 
will. I am of opinion that the other paper, in form a deed, is testamentary as 
regards the personal property therein mentioned. I am rather inclined to think 
that it is not testamentary as regards the real estate; but on this point I 
wish it understood that I give no opinion, as it is unnecessary, for if it was 
testamentary, I think that it is not sufficiently proven; Yarbrough, one of 
the two attesting witnesses, being therein appointed a trustees for the sale 
of the lands, and entitled to a compensation for his services therefor; for 
the disqualification relates to the time of attestation, and not to the time 
of giving evidence.

I concur in the opinion, that the judgment of the Superior Court be reversed 
so far as the probate of the said last mentioned instrument, is established, 
and af-(178)ffirmed as to the other parts of the judgment; and that the 
plaintiffs pay the costs of this Court, and that the defendants pay the costs 
below, so far as regards the establishment of this instrument as a will of 
personal estate, and that the plaintiffs pay the residue of the costs.

Approved. Daniel v. Proctor, 12 N. C., 428; Old v. 
11-2l
Old, 15 N. C., 500; Matthews v. Marchant, 20 N. C., 40; Tucker v. Tucker, 27 
N. C., 161; Morton v. Ingram, 33 N. C., 168; Huie v. McConnell, 2 Jones, 455.

Additional Comments:
North Carolina Reports, Volume 11
Cases Argued and Determined in the SUPREME COURT of NORTH CAROLINA.
For December Term 1825 and June Term 1826 
by Francis L Hawks (Vol. IV)
Annotated by Walter Clark
Richmond: James E Goode Printing Company, Printers
1897

December Term, 1825

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