Estep v. Morris

Grason, J., delivered the opinion of the Court. This appeal is taken from ah order of the Circuit Court for Prince George’s County, ratifying a trustee’s sale. By an agreement of the counsel of the respective parties, filed in the case in this Court, the purchaser at the trustee’s sale, as well as the exceptants to its ratification, are made parties appellants. The only question raised by the exceptions is whether the executor, who was also appointed by the will, guardian of the infant devisees, was a “credible” witness to the will and competent to prove it in the Orphans’ Court.

Section 301 of Article 93 of the Code does not define who are “ credible” witnesses, and we are therefore obliged to look to other sources for its meaning. In the case of Wyndham vs. Chetwynd, 1 Burr., 417, Lord Manseibbd, in considering the competency of witnesses to prove a will, found it necessary to consider the meaning of the word “ credible,” as used in the Statute of 29 Charles II., chap. 3, and he said that it had a clear, precise meaning, and was never used as synonymous to competent, but that when applied to testimony, it presupposes the evidence given. He further says that persons undoubtedly “credible” cannot be witnesses under particular circumstances, while persons manifestly incredible may be and often are witnesses ; and he held that it would he absurd to make the essential solemnity of the will depend upon the credibility of the witnesses. He concludes that the word “credible” “slipped” into the Statute by mistake, or through want of attention to the impropriety of using it, and he thinks that it does not mean competent, because ⁴²⁴ the use of the word witnesses implies persons competent to testify.

That distinguished Judge then uses the follow? ing language: “ But what sense soever is put upon the wnrd ‘ credible,’ the Statute leaves the question just as it was ; for it does not declare who are, or are not credible, or (if it is supposed to mean competent,') who are compe-, tent, or who are incompetent.” In that case it was held that creditors were competent to prove the will, although it charged the payment of debts upon the land, the debts having been paid. Judge Chase, in delivering the opinion of the General Court, in the case of Shaffer’s Lessee vs. Corbitt, says that the word “ credible” must be “ rejected as superfluous and nugatory ; for competency is included, in the term ivitness, so that the clause must be considered as if it stood without the word credible.” In that casé the. General Court decided that a legatee under a will was. a. competent attesting witness to the will for the reason that he had no interest under the will at the time of the attestation, the will being ambulatory during the life of the testator^ but that, he was not a competent witness to prove the will without releasing his legacy, and upon appeal the Court of Appeals affirmed, the judgment. Shaffer’s Lessee vs. Corbitt, 3 H. & McH., 532 .

In the recent case of Higgins, et al. vs. Carleton & Scaggs, 28 Md., 140 , this'Court said that “ credible” as used in the Statute means competent to testify at thetime of attestation. If then a legatee, or creditors, the payment of whose debts the will charged upon lands, were competent witnesses at the time of attestation as decided by the cases above cited, there can be no reason for saying that an executor or guardian appointed by the will, was not a competent attesting witness at the time of attestation, under the rules of the common law. He would not, however, be competent to prove the will, for the reason that at that time he had an interest under the will. Sir Wm.

Blackstone says,-that all persons in .general are capable ⁴²⁵ of attesting a will as witnesses who are not infamous, insane or so young as to want discretion. 3 Bl. Com.; Shaffer’s Lessee vs. Corbitt, 3 H. & McH., 531 . It would seem therefore, that the gommon law required no particular or special qualifications in persons, to enable them to be attesting witnesses to wills. No difficulty was presented until the testator died, the will took effect and the attesting witnesses recalled to prove the will.

The rule of the common law then interposed and prevented all parties, who were interested in the matter or proceeding then pending, from testifying therein. To prevent wills from being rendered void by such means, the Statute of 25 Geo. II., chap. 6, was passed, by which all interest given by the will to an attesting witness, was declared to be null and void. This Statute has been adopted in this State, and is to be found in Kilty.

And so is the law now in England under the Statute. 1 Vict., chap. 26. At common law, therefore, any person who was not infamous, insane, or so young as to be wanting