4. The fact, that a testatrix inherited a large property, which had been much diminished, is not evidence to prove that she was of unsound mind and incapable of making a will. — Hall v. Hall,

xvii. 373.

5. An acknowledgment or recognition by a testator, either express or implied, in presence of an attesting witness, of the signature to the will, is equivalent to an actual signing. Ibid.

6. Upon the question of probate of a will, a prior will, read and explained to the testatrix at the time she executed the subsequent one, with a designation of the points of agreement and difference between the two, but never offered for probate, is evidence, as part of the res gesta. - Bacon v. Bacon, xvii. 134.

7. A testator wrote upon his will: "it is my intention at some future time to alter the tenor of the above will; or rather to make another will. Therefore be it known, if I should die before another will is made, I desire that the foregoing be considered as revoked and of no effect." Held, this was an immediate revocation, not the declaration of an intent to revoke by some future act. Brown v. Thorndike, xv. 388.

8. The attesting witnesses to a will need not sign it in presence of each other. Dewey v. Dewey, 1 Met. 349.

9. If they were so situated that the testator might see them subscribe the will; this is primâ facie evidence that he did see them. Ibid.

10. Where one witness has no recollection of subscribing, but testifies that the signature is his, the testimony of another, that the former did subscribe his name, is sufficient proof of the fact. Ibid.

11. Under the Revised Statutes, c. 62, § 6, it is sufficient that a will is subscribed by three witnesses, at the request, and in presence, of the testator, he declaring it to be his will; though neither witness saw him sign it, or heard him admit his signature, and only one of them saw his name thereon. — Ibid.

12. By St. 1792, c. 32, "in all suits at law," wherein any parish, &c., is a party or interested, any inhabitant shall be admitted as a competent witness, provided he has no other interest therein than as an inhabitant of such parish, &c., and is not otherwise legally disqualified. Held, a proceeding in the probate court, for the proof and allowance of a will, was a suit at law within this act. Haven v. Hilliard, xxiii. 10.

13. St. 1783, c. 24, in requiring the attestation of a devise by three credible (meaning competent) witnesses, did not intend to determine who should be competent, but to provide that attesting

witnesses should be such as might be competent by the laws in force for the time being. — Ibid.

14. By a will of lands made subsequently to the act of 1792, c. 32, a legacy was given to a parish, of which two of the attesting witnesses were members, but they had no other interest in such legacy. Held, by virtue of this statute, they were credible witnesses within St. 1783, c. 24. Ibid.

15. It seems, where the words of a will, not attested by three witnesses, are such as to leave it doubtful, whether the testator intended to dispose of real or personal property, or both; the probate court may and must, in order to settle the validity of the will, admit extrinsic evidence as to the nature and circumstances of his estate. Brown v. Thorndike, xv. 388.

16. But, if the terms of the will expressly give real as well as personal property, whether such evidence is admissible to show that the testator had no real estate at the making of the will, qu. Ibid.

17. By St. 1783, c. 24, a will purporting to dispose of real and personal estate, but not duly attested to pass the former, shall not be approved for the latter. Whether the act applies to a writing intended for a total revocation of a will, of real and personal estate, but not duly attested to pass the former, qu. — Ibid.

18. If one dispose of real and personal property by a will duly attested, and afterwards revoke it as to the realty by an alienation thereof; it may be wholly revoked by another writing, though unattested, as if it had originally been merely a disposition of personal estate. Ibid.

prov

19. And the alienation of the real estate may of course be ed, upon the question of probate, by extrinsic evidence. Ibid.

20. A will, after several pecuniary bequests, proceeded thus: "I give and bequeath the balance of my estate, including a double-cased gold watch," &c. "The legacies above mentioned, except those to remain in my executor's hands, to be paid out in one year after my decease." By St. 1783, c. 24, § 9, a will purporting a disposition of both real and personal estate, not duly attested to pass real estate, shall not be approved and allowed as a testament of personal estate only. Held, the above will did not purport to dispose of real estate, and therefore, though not attested by three witnesses, was a valid will. Bartlett v. Munroe, xxi. 98.

21. A will, attested by only two witnesses, gave to the wife of the testator all his personal property, and the improvement and income, for life, of all his real estate; and the real estate, after

her death, to his brothers. Held, both by the letter and spirit of the above statute, the will was wholly void, as purporting a disposition of both real and personal estate. Kendall v. Kendall,

xxiv. 217.

22. Held, the Court would not inquire, whether the testator's intention would be more nearly effected by allowing the instrument as a will of personal property, than by setting it aside in toto. — Ibid.

23. The son of a testator took a note for $400 from one A., for which the testator was bound to indemnify A., though he denied such liability. The testator afterwards delivered A. two notes for $221.85, which he held against the son, and took an accountable receipt therefor, it being agreed, that the testator should so alter his will, as to take the sum of $375 out of the share bequeathed to his son, and give his note to A. for $153.15, and that A. should thereupon have the receipt delivered up to him by the person with whom it was deposited. Under this agreement, the testator made the proposed alteration in his will by a codicil, to which A. became a witness, and gave A. his note and an order for the delivery of the receipt to him. Held, as the payment made by the testator to A., was voluntary, in pursuance of a claim of right, and under no mistake of fact, it could not be recalled; that setting aside the will would cause no loss or inconvenience to A., and he was therefore a credible witness. Bacon v. Bacon,

xvii. 134.

24. A devisee under a will, which may possibly be allowed and take effect, if a subsequent one should be set aside, is not a competent witness against the latter. Hall v. Hall, xvii. 373.

25. A will, not offered for probate, is admissible, to show that one called as a witness against a subsequent will is a devisee under the former, and therefore not a competent witness against the latIbid.

ter.

26. A testator, in 1807, devised to his wife the improvement of his real estate, and the income of one third of his personal property, for her widowhood, and no longer; and gave her, if she should again marry, one sixth of his personal property, absolutely. { He bequeathed two thirds of his personal property to his children, and made no further disposition of his estate. Held, under St. 1805, c. 90, the reversion in the real estate descended, immediately upon the testator's death, to his surviving children, and, at the same time, one third of the personal property vested in them, subject to the bequest to the widow. Russell v. Hoar, 3 Met.

187.

27. A testatrix, owning a house in S., with a yard and garden, and also several lots of land adjacent to the house and garden, with

"I give

Held, M.

buildings on them held by tenants, devised as follows: unto M. my house in S., now occupied by me." took none of the land or buildings occupied by tenants at the date of the will. Saltonstall v. Brown, 3 Met. 423.

Witness.

A. Attendance of a witness, when and how compelled. B. Competency or incompetency of a witness. C. The swearing and examination of a witness; his privileges as to the answering of questions or production of papers.

D. When and how a witness may be objected to, discredited, or restored to competency; and herein of accomplices. (Ante, B., a, 17 & seq.)

A. Attendance of a witness, when and how compelled.

Where a witness, subpoenaed by the government, and examined, in a capital trial, leaves the court before the trial is ended, and the defendant desires to reexamine him; he may call for the subpœna, and a capias may issue to compel the witness' attendance. Commonwealth v. Buzzell, xvi. 154.

B. Competency or incompetency of a witness. a. In regard to interest.

1. Bill in equity, for an injunction against diverting water from a saw-mill, and for damages for a past diversion. Held, a person, who during the diversion was under a contract to tend the mill, receiving a compensation in proportion to the timber sawed, and another under a like contract at the time of trial, were both competent witnesses as to the damages; because these would belong wholly to the plaintiff, and the witnesses, if injured by the diversion, must bring their own actions, in which the present judgment would not be evidence. Bliss v. Rice, xvii. 23.

2. In replevin against an officer for goods attached, the person

as whose property they were taken is incompetent, from interest, to prove that the goods belonged to him. Pratt v. Stephenson, xvi. 325.

3. In a suit against one who is alleged to have conveyed all his property in fraud of creditors, the grantee is a competent witness for the defendant, if it be not shown that he participated in the fraudulent purpose, or was cognizant thereof, nor that the property, or the money received on the sale thereof, is still in his hands. Johnson v. Johnson, 3 Met. 63.

4. A mortgagee of personal property, who assigns the mortgage without any warranty of title, express or implied, is a competent witness for the assignee, in a suit wherein the validity of the mortgage and the assignment is brought in question. — Jones v. Huggeford, 3 Met. 515.

5. The defendant, holding a mortgage from one A., and wishing to sell the land, took from A. a quitclaim deed, with release of dower. He then made a contract with the plaintiff, that, if he should receive from a sale of the land $200 more than his claim against A., he would pay $ 100 to the plaintiff for the use of A.'s wife and children. The plaintiff brings a suit upon this contract, the wife of A. having previously died. Held, A. was a competent witness for the plaintiff. Needham v. Sanger, xvii. 500.

6. Action on book account. The defendant proved by a witness, that, upon the sale of a horse by the witness to the plaintiffs, it was agreed that a part of the price should go in part payment of this account, and that the defendant should pay the amount of such portion to the witness; and that he did pay it accordingly. Held, the witness was competent; for a verdict, either way, could not be used for or against him, nor would he in any case be liable for the costs of this suit, having never been called on by the plaintiffs Burt v. Nichols, xvi. 560.

to account.

7. The obligee of a bond having assigned it to trustees for benefit of creditors, the trustees brought an action upon it in his name, and attached certain property, which the plaintiff replevies as belonging to him. Held, the trustees were incompetent witnesses for the defendant in the replevin suit. - George v. Kimball, xxiv.

234.

8. Upon a trial for forgery, the person, whose signature is stated to be forged, is a competent witness to prove the forgery and the destruction of the instrument in question, though civil actions may be pending against him, the only defence to which will be the forgery alleged. - Commonwealth v. Peck, 1 Met. 428.

9. Under St. 1826, c. 27, § 5, and Revised Statutes, c. 35, § 4, the maker of a note payable to his own order, and indorsed