#### ELIZABETH TUCKER & AL. vs. JOHN TUCKER & AL.

A devise of a power to an executor to sell land, or a devise of the land to him. in trust to sell, does not give him such an interest in the land as disqualifies him from being an attesting witness to the will.

The act of 1840, chap. 62, requiring wills of personal property to be executed with the same formalities as wills of real estate, is to be construed to mean that they shall be attested by two subscribing witnesses, ho one of whom, at the time of attestation, is interested in the bequest of personal es» tate. It does not confine the interest of the witnesses to the devise of lands, as in the case of wills devising lands.

Therefore, where the will disposes of both real and personal estate, so far as the attestation of the subscribing witnesses is concerned, it may be good aa to the one species of property, and not as to the other.

One, who is named executor in a will, is so far interested, by reason of the commissions to which he is by law. entitled, as to render him an incompetent attesting witness, as regards the disposition of the personal property.

Therefore, where a will was made,' devising real, and bequeathing personal estate, and it was attested by two witnesses, one of whom was named executor; It was held, that it was a good will as to the lands, but net good as to the personalty.

The cases of Perry v. Fleming, 2 No. Ca. Law Rep. 458. Allison v. Attüon-, 4 Hawks, 141, and Ferebee v. Proctor, 2 i)ev, & Bat. 439, cited and approved.

Appeal from the Superior Court of Law of Stokes County, at the Fall Term, 1844, his Honor Judge Pearson presiding.

This was an issue of devisavit vel non, upon an instrument propounded as the will of Robert Tucker, deceased, of his real and personal estate, dated the 3d day of September, 1842.

By it he gives to his wife 100 acres of land, two slaves, and some other chattels.

To his son John he gives five shillings \ and to Sarah, the daughter of John, he gives a negro girl.

To his sons, Anderson, Paul, Silas, George, Robert, and Daniel, he gives certain slaves, each; and to his daughter Sarah, and his grand-daughter Sarah Priddy, he also gives certain negroes.

*162To his daughter Susannah, he gives $50, “ to accrue by the mY land,” and to her daughter Sarah, he gives 50 acres of land, part of the Heath tract.

rpQ daughter Elizabeth, he gives the sum of five shillings, and to her children he gives two parcels of land, to be equally divided between them.

The paper then concludes thus: “ The balance of my land and other property I appoint and ordain to be sold, and the money arising from the sale thereof, not given away, to be applied to paying my debts; the balance, if any, to be equally divided among the herein named legatees.”

Silas Tucker and John Preston are appointed executors, and the instrument is attested by Robert Coleman, and the same John Preston.

When the will was exhibited in the County Court, John Preston renounced the office of executor, and it was propounded by Silas Tucker, and by the widow and the grandchildren, and by some of the children provided for in it, and opposed by the other heirs and next of kin.

The case came by appeal to the Superior Court, and on the trial, John Preston and Robert Coleman, the subscribing witnesses, proved the execution and publication of the instrument, and the jury found in favor of the paper, as a will of real estate, and also as a will of personal estate, subject, however, to the opinion of the court upon the question, whether, as the said Preston is nominated one of the executors, and is also one of the two witnesses, the paper is duly attested, so as to be good in law as a will of real and personal, estates, or either, and which.

The court was of opinion, that it was sufficiently attested to pass both real and personal estate, and pronounced accordingly on the verdict, and the party opposing the probate appealed.

J T. Morehead for the plaintiffs.

The only point in this case is, as to the competency of John Preston, one of the subscribing witnesses to the will, who is also appointed one of the *163executors. By reference to the act of 1840, chap. 62, it be seen that the Legislature intended to make the due execution of a will to pass real estate, the test by which wills of personalty were to be tried, and the language is, “ That no will in writing, made after 4th day of July, one thousand eight hundred and forty-one, whereby personal estate is bequeathed, shall be sufficient to convey or give the same, unless such will be executed, with the same formalities as are required in the execution of wills of real estate.”

From the language of the act, the correct point of inquiry is, whether the paper propounded for probate is executed with the formalities, and by competent witness, as required by the act of 1784, to pass real estate; if so, it must necessarily follow, that it is a good will as to the personalty.

It is contended for the plaintiffs, that the paper writing is well executed to pass real estate. It is not every supposable interest which disqualifies a witness. Winanfs heirs v. Winant’s devisees, 1 Murph. 148. An executor in trust may be a witness; Goodtitle v. Welford, Douglass 141; per Wills Justice.

An executor may be a witness in a cause concerning the estate, if he have not the surplus given him by the will, and so I have known it adjudged, per Loe,» Hale. See note to the case of Goodtitle v. Welford.

Grantee, when he is a bare trustee, is a good witness to prove the execution of a deed to himself. Gross v. Tracy, 1 P. Williams, 290.

The question then is, had Preston an interest in the land devised, so as to exclude him under the act of 1784? Rev. Stat. chap. 122, sec. 1st. It. is submitted that he had not, because he takes no interest in the land. The testator'directs that the lands be sold, and the money divided among his children. Were Preston to die before qualification, neither his personal representatives or heirs would take anything. Until the lands are sold, the inheritance is in the heirs of the . testator, and ejectment could be brought only by them. He is a mere naked trustee, not possessing the estate, but a mere *164power over it. Were he to refuse to qualify, his co-executor catl eonvey- Were both to refuse or die, the administrator with the will annexed can execute the power, and make title. Rev. Stat. chap. 46; see. 34. Before the passage of the act, were both to qualify and! die without executing the power, equity would compel the heir to join in the sale of the estate, for the purposes designated by the testator. Sugden on Powers, 393-4. Wandford v. Thompson, 3 Yes. Jr. 513. Hilton v. Kenworthy, 3 East. 553. Co. Litt. 236, a.

It is said, that the executor is entitled to commission, under our act of assembly, (Rev. Stat. chap. 46, sec. 29) and is therefore incompetent to prove the will, from interest.

To this objection, two answers may be readily given:

I. The act must be construed to allow commissions on such estate as properly belonged to him as executor, to-wit, on the personal estate, because the words “ executors and administrators” are used in the same sentence, and there ean be no pre-tence that an administrator had any thing to do with the real estate. See Daniel v. Proctor, 1 Dev. 428.

II. If I am right that Preston takes no estate or interest in the land, then he is a naked trustee, and not entitled to commission. This rule is well settled in England. Lewin on Trusts and Trustees, 438; Law Library, 14 vol. 222. The law was so understood in this State in 1799, the time of passing the last named act; Daniel v. Proctor. Nor were trustees entitled to compensation for trouble and loss of time.

The cases of Allison v. Allison, 4 Hawks 141, and Boyd v. Hawkins, 1 Dev. Eq. 329, do not stand in the way of my conclusions.

In the first case, the supposed testator directs his lands to be sold by his executors, and for them to retain to themselves a compensation out of the purchase money: there was a direct interest upon the face of the will.

In the second case, the court seemed rather to relax the rale in favor of compensation to trustees for trouble and loss of lime, not as a perquisite of office, but as a quantum meruit. Not that the act is imperative on the court to allow commis*165sion, but as furnishing a safe rule as to the quantum of compensation.

Kerr for the defendant.

Ruffin, C. J.

There is do doubt that Preston was competent as a witness to testify at the trial. Between the heir and devisee, the executor is competent to support the will. 2 Stark. Ev. 758. And he had divested himself of all interest in the personal estate by renouncing; and the competency of a witness depends on his interest, when he is called to give evidence. Percy v. Fleming, 2 No. Ca. Law Repos. 458.

But the question on the verdict is, not whether Preston was competent to testify at the trial, but whether he was competent to attest the paper as one of the two witnesses, required by law to a will of real estate, and now, also to a will of personal estate? For the competency of a person to attest a will depends upon his not being interested at the time of his attestation. Allison v. Allison, 4 Hawks, 141.

We do not see any thing to prevent this person from being a good witness to this paper as a will of land. That depends entirely on the act of 17S4. Rev. St. C. 122, S. 1. With respect to attested wills, the provision is, that they “ shall be subscribed in the testator’s presence by two witnesses at least, no one of which shall be interested in the devise of the said land.” It has been already observed, that merely as executor, Preston ha§ no interest in the will as a will of land.

But here there is a direction to sell land, and as no person is appointed to make the sale, and the proceeds are to be applied to the payment of debts and legacies, it is a duty that devolves on the executors. Ferebee v. Proctor, 2 Dev. & Bat. 439. Still we do not think that gives the executor an interest in the land. The will does not charge any commission in favor of the executors, as was done in Allison v. Allison. Nor does the law give it to them. The statute, Rev. St. c. 46, s. 29, is confined to the personal estate, as is shewn by its making the commission a subject of retainer against creditors, legatees, and next-of kin. But upon a,power to sell land, or a devise *166of it to him in trust to sell, the executor is a mere trustee, entitled in England only to his expenses, and here to nothing more, except as the Court of equity may, in its discretion, think proper to allow. Of strict right he is entitled to nothing; and therefore cannot be said to be interested in the devise.

It was said at the bar, however, that this could not be a good will of the land, unless it be also good as to the personal property, because the act of 1840 places them on the same footing. But we do not perceive any thing in that act, which at all affects, or can be supposed to have been intended to affect, a will of lands. If this be not a good will of personalty, as we suppose it not to be, yet that is owing entirely to the act of 1840; and that act is strictly confined to wills of personal estate, and has no allusion to wills of real estate, for the purpose of adding any new requisite to their formal execution, but merely to require wills of personalty to be thereafter executed with the same formalities as were then required by law in respect of wills of lands — leaving the latter just as they were before.

But we think this paper is not duly attested as a will of personalty. It is insisted that it is, because the act of 1840 makes a will sufficient to pass personal estate, if it be executed with the same formalities, as are required by the first section of the Revised Statutes concerning wills of land; that is to say, by two witnesses not interested in the devise of the land. But though that be the literal reading, it cannot be the sense of the act; for it would render it absurd, and defeat the obvious purpose of the legislature. For, as just observed, that act does not touch a will of land, as making any alteration in the law as to its execution; but it is confined strictly to wills of personal estate. There was no motive to alter the law as to wills of land; as it was already enacted, that they should be attested by two witnesses, not interested in the land at the time of attesting. The sole object of the act of 1840, was to establish the same guards in relation to the personal estate, against fraud and perjury in fabricating and sustaining wills. The construction of the Act must be to require two witnesses at *167least to a will of personal estate, no one of which shall be interested in the personal estate bequeathed in it. That must be the meaning; otherwise, the act will be nugatory in the very case and only case mentioned in it; which is, that of a will disposing of personal estate only. For the Act does not provide for the case of a will disposing of both real and personal estate, and add any ceremony to be observed in the execution of such a will; but it speaks of a will of personalty as distinct from one of land, and recognises them as instruments relating to different subjects. But it applies to wills of personalty the same provisions as to their formalities, that were before required for wills of land. Therefore, there must be two witnesses to it; and the only question is, what are to be their qualifications % Certainly, the legislature did not mean, that if a will disposed of nothing but personalty, it should be good without any witness; for that would be against the very words of the act. In such a case then, it means that the witnesses should be persons taking nothing by the instrument; that is, no part of the personal estate, which is the sole subject of the instrument. If so, it follows, when the instrument purports to dispose of both real and personal estates, it must be attested as to each, in the several manners required to make a good will of the two kinds of estates separately. There is nothing in the act to shew, that the legislature meant that a will should be good, as a will of personalty, merely because it was good as a will of realty, more than that it should be good as a will of land, merely because it was good as a will of personalty. In fine, the law treats the two kinds of estates as different subjects, and often going to different persons. It does not deem the one fund or the other the more worthy, so as to make a will that is good as .to one fund, good as to the other ; nor is there any thing to raise a presumption that the legisla, ture meant that a will disposing of the two kinds of estates should opérate as a whole, or not at all. For, as we have already said, the case of a will of both kinds of estates is not within the purview of the act, but it simply prescribes a new method of attesting a will of personalty. Here the jury have *168found the animus disponendi as to both estates, and that was their province. Robinson v. Kea, 4 Dev. 301. So that the only question is, as to the sufficiency of the paper, in respect ^ jtg formaj executjon as a will of each kind of estate. If the legislature had intended that a will of real estate, attested by witnesses not interested in the devise, should not be good as a devise, ifit should not also be good as to the bequests of personalty contained in it, or vice versa, the language would have been simply, «that no will should be good to pass any estate, unless it be subscribed by two witnesses, neither of which should be interested in any gift in the same contained.” But as the act of 1784 only requires that witnesses to a will of land should not be interested in the land, we can add nothing to the qualification of the witnesses to such a will. And as the act of 1840, as it must be understood, requires two witnesses to a will of personal estate not interested in the bequests thereof, we can take nothing from their qualification. If, indeed, we could see a reason, why the legislature should have intended that the gifts of land or its proceeds, to this persons widow and grandchildren should not take effect, because the parents of those grandchildren (to whom the testator did not think it safe to give any thing) are able to defeat the gifts of personalty to the same persons for the want of a mere formality required by the law in the execution of the paper, as a will of personalty, while it has every formality required for it as a will of land, we should most willingly declare it not good for one purpose, because, not good for all. So, we should most gladly, under the verdict, support it as a will of personalty, if we were at liberty to do so, merely because it is good as to the land. But we cannot do so, because that is not the act of 1840, which requires it, as a will of personalty, to be attested by persons not interested in the personalty. It is to be regretted, indeed, that the legislature has not adopted the policy of the act of George II, and destroyed the interest of the subscribing witnesses by making void all gifts in the will to them ; and the want of such a provision is severely felt in this case, as it defeats the most beneficent provisions for the families of *169the very persons who contest this will. But we cannot act on such considerations, but must administer the law as it is; and' as that requires an attestation of a will of personalty by two persons, not interested in it at their attestation, this is not a good will of that kind. The .witness, Preston, was interested, because the act of 1799 gives an executor a legal right, over and above his charges and disbursements, to commissions on the personal estate.

Therefore, upon the verdict, the court should have pronounced for this as a sufficient will of the real estate, and against it as a will of personal estate; and, consequently, the judgment must be reversed and thecase remanded with instructions so to pronounce, and to certify the same to the County Court, in order that the will and probate may be there recorded and other proceedings had according to law.

Per Curiam, Ordered accordingly.