1851. October Term.

Moore

V.

Moore's
ex'or
&als.

attested out of the room and out of his sight could be sustained as conforming to the law? If not, then it must be conceded that the attestation here alone would not have sufficed to give validity to the instrument: something must be superadded, or substituted rather, in the place of a regular attestation. This would be adding a new term to the statute, and declaring in effect that the will should either be attested in his presence, or if not, that the witnesses, after subscribing their names, should exhibit the will so subscribed to the testator and acknowledge their signatures. It is unnecessary to inquire whether such a provision would have furnished as great a security against the imposition of a surreptitious paper on a man in extremis as the actual safeguards thrown around him by the statute. It is sufficient to say that the law contains no such provision, and it is the province of this court to declare what the law is, and not to enact new laws.

Our statute of wills, so far as respects attestation, was copied from the statute of 29 Charles 2, and it is a well established principle that where an English statute is copied, the decisions of the courts at Westminster may be considered as having been adopted with the text they expounded.

The case of Eccleston v. Speke or Petty, Carthew 79, occurred in 1st William and Mary, not very long after the passage of the English statute. In that case the testatrix signed the will in the presence of the subscribing witnesses in her bed chamber, the witnesses subscribed it in a hall, and it appeared that it was not possible to see from her chamber what the witnesses did at the table in the hall. The testatrix continued in her chamber all the time they were subscribing. And it was held that the attestation did not conform to the statute. Nothing was said as to the physical power of the testatrix to have left her chamber. The case established that not being in her chamber, where she could

seen,

has

have seen if she had chosen, and being out of her cham-
ber and without the scope of her vision, the attestation
was invalid. This has been recognized as the leading
case on this point, giving a construction to the statute
soon after its enactment, and, so far as I have
never been controverted by any subsequent case in the
English courts or the courts of the different States.
The principle of the case was distinctly recognized by
all the judges of this court in Neal v. Neal, and it seems
to me is conclusive against the attestation in this case,
if the case is to be decided upon the regularity of the
attestation alone, as I think it must be. The facts found
-that the witnesses, after subscribing their names in the
passage, carried it back and handed it open, with their
names subscribed to it, to the testator, who held it a
minute or more and looked at it, and then gave it to
one of the witnesses to be folded up for preservation-
whilst they furnish a moral certainty that no fraud or
imposition was practiced on the testator, do not amount
to an attestation in his presence,the only security against
fraud which will satisfy the requisitions of the law. A
will not wholly in the hand writing of the testator may
be acknowledged in the most solemn form before any
number of witnesses, and under circumstances excluding
the possibility of fraud, yet the law presumes it fraud-
ulent, and, in the language of one of the judges in Neal
v. Neal, no proof of actual fairness can avail to supply
the requisites of the statute.

The will being dated, and the testator having died before the passage of the act of March 4, 1835, Sess. Acts 43, requiring the same kind of proof as to wills of personalty that was requisite to the validity of a devise of realty, I think the facts found are sufficient to authorize its admission to probat as a will of personalty, (Redford v. Peggy, 6 Rand. 316,) and am therefore of opinion that the sentence, so far as it admits it to probat

1851. October Term.

Moore

V. Moore's ex'or & als.

1851. October

Term.

Moore

V. Moore's ex'or

& als.

as a will of personalty, should be affirmed, and reversed so far as it was admitted to probat as a devise of realty.

MONCURE, J. thought the will attested in the presence of the testator within the meaning of the statute; and concurred fully with Judge Baldwin.

1851. October Term.

Richmond.

GLAZEBROOK's adm'r v. RAGLAND'S adm'r.

(Absent Cabell, P.)

December 9th

A deed of trust by husband in favour of himself and wife was not
duly recorded; but the land was sold by the trustee under
a decree of the court in a friendly suit by the cestuis que
trust against the trustee, and conveyed to the purchaser by
deed duly recorded. Years afterwards, but before all the
purchase money was paid, the purchaser became the
surety of the husband in a forthcoming bond, and was com-
pelled to pay the money. In an action on the bond for the
purchase money by the trustee against the administratrix
of the purchaser, she pleaded as a set-off the debt paid by
the purchaser as surety of the husband. HELD:
1st. That though the trust deed was not duly recorded,

yet under the circumstances it was valid; and
neither the land nor the purchase money was
liable for the husband's debts.

24. The deed of trust being valid, the interest of the husband in the trust subject is a joint interest, and therefore cannot be set off by a debt due from himself.

This was an action of debt, brought originally in the County court of Hanover in the year 1825, by John Glazebrook against Sarah Ragland, administratrix of Absalom Ragland deceased. The facts of the case

were as follows:

1851. October Term.

Glazebrook's

adm'r

V.

adm'r.

In the year 1807 Oliver Cross executed to Doswell and Day, trustees, a deed conveying to them a tract of land in the county of Hanover and other property, in trust to sell the land, and out of the proceeds to pay a moiety to said Oliver Cross, and with the other moiety Ragland's to purchase other land for the use of Sarah, wife of Oliver Cross, during her widowhood, or dispose of the money as they may think most advantageous, paying her the interest on such moiety, if not appropriated to the purchase of land; and at the death of said Sarah, or her marriage, the land or money to be divided. among the children of Oliver and Sarah Cross. The deed was made expressly "to secure to the children and their heirs a fee simple estate, and also to provide for his wife a competent and decent maintenance during her widowhood."

The deed was proved in Hanover County court on the 27th of May and the 26th of August 1807, by the oaths of two witnesses as to the grantor, and on the said 27th of May was acknowledged in court by the

trustees.

On the 28th of February 1811 friendly proceedings were had between Oliver Cross and Sarah, his wife, and James Doswell as trustee (Day being dead), whereby John Glazebrook was substituted as trustee in lieu of Doswell, and empowered and directed by the decree then pronounced "to sell and convey the title" of the land embraced in said trust deed, and to report to the

court.

Under authority of this decree Glazebrook sold the land, and Absalom Ragland (the intestate of the defendant) purchased it, and executed for the purchase money a bond of £546, conditioned to pay £273 on demand to "John Glazebrook, acting as trustee under a decree of the worshipful Court of Hanover, bearing date the 28th day of February 1811, in the room of James Doswell, for selling lands belonging to Oli

1851. October

Term.

Glazebrook's admi'r

adm'r.

ver Cross and Sarah Cross, his wife." This bond bears date 11th January 1812. And the trustee conveyed the land to the purchaser the same day.

By an endorsement on the bond, John Darracott, Ragland's substituted as trustee for Glazebrook, appears to have credited a payment of 990 dollars, as of the 24th of July 1823. When that substitution took place does

not appear.

On the 7th of February 1825 the present suit (an action of debt) was instituted on the said bond in the name of Glazebrook, the substituted trustee," for the benefit of John Darracott, the present trustee," against Sarah Ragland, administratrix of Absalom Ragland. The suit in its progress was revived in the name of William L. White, as administrator of Glazebrook, for the benefit of the administrator of the trustee Darracott, and of John B. Timberlake as administrator of Ragland.

The defendant Timberlake, at a court held for the county of Hanover on the 24th of October 1832, and continued to the 27th of that month, withdrew the plea of “payment" previously filed, and upon which the cause had been once ineffectually tried, and, as the record states, "thereupon he further pleads payment, no assets, and fully administered, and files a set-off to the plaintiff's demand in this suit."

On the 25th of July 1838 the cause was transferred from the County to the Circuit court of Hanover. None of the pleas were in writing, nor appeared in any other form than the above entry by the clerk; nor was any issue ever joined on any of the pleas.

The cause was tried on the 11th of April 1845, and a verdict was found for the plaintiff for the sum of 34 dollars 67 cents, with interest from the 24th of July 1823; the recovery being thus reduced by the adinission of an off-set, to the admission of which by the court the plaintiff filed two exceptions.