a thing as this is to be proved as a will, it calls loudly upon the legislature to make some regulation as to the disposition of personal property, so as that there should be something of solemnity, certainty, and precision, in order to give away that property, and defeat the natural rights of the relations." On the other hand, with respect to the three witnesses required by the Statute of Frauds, Lord SECT. 9. Mansfield is recorded to have said, "The legis- 1 Burr. R. 420. lature meant only to guard against fraud by a solemn attestation, which they thought would soon be universally known, and might very easily be complied with. In theory, this attestation might seem a strong guard; it may be some guard in practice; but I am persuaded many more fair wills have been overturned for want of the form, than fraudulent have been prevented by introducing it." The present enactment, that every will shall be attested by two witnesses, is in accordance with the recommendations of the Ecclesiastical, as well as the Real Property Commissioners. Page 33. 4th. That such witnesses shall subscribe the In Testator's will in the presence of the testator. This was a provision of the Statute of Frauds : its object was lest another will should be substituted instead of the real one; but it has been so far disregarded that the Courts have not required that the testator should actually see the witnesses sign; but have considered it sufficient if he might Presence. SECT. 9. Shires v. Glas cock, 2 Salk. 688; 1 Bro. 99. see them in possibility, as through a broken window, or where he is in a carriage in the street, and they are in a room with a window towards Casson v. Dade, the street. This looseness in construing these words has given rise to many doubtful cases, in which the question between the litigating parties has been-in what position the testator was lying fold, 1 M. & S. in his bed, and other circumstances equally Doe v. Mani 294. In Execution of Fourth Report of Real Property Commissioners, p. 12. minute and difficult of proof. The Real Property Commissioners recommended the omission of this condition, in order to avoid the question as to what constitutes presence according to the construction which has been put upon that word. SECT. 10. Relates to wills made in exercise of powers, and enacts, that the solemnities required by the act for the execution of all wills, shall alone be requisite for a due execution of a power, notwithstanding other solemnities may be expressly required by such power. Previously, every combination of the solemnities which the law had made necessary for the due execution of wills of different descriptions, and several solemnities not required by any law, were found to be occasionally prescribed by different powers of appointment. On the other hand, if the power, as to freehold property, was given to any other person than the owner, it was thought that it might be authorized to be exe cuted by a will made without the solemnities required by the Statute of Frauds. Again, if the owner of freehold property by his will, duly attested, charged his estates with legacies generally, he might by an unattested codicil give legacies which would be payable by virtue of such charge. There have been a great many cases, in which the question has been, whether there has been a due execution of a power. These will probably be obviated in a great degree by this section. Wagstaff v. Wagstaff, 2 P. W. 258; AttorneyGeneral v. Barnes, 2 Vern. 598; Duke of Marlborough v. Godolphin, 2 Ves. 76; Jones v. Clough, 2 Ves. 366; Duff v. Dalzell, 1 Bro. C. C. 147; Tuffnell v. Page, Barnard. 9; 2 Atk. 37; Attorney-General v. Andrews, 1 Ves. 225; Dormer v. Thurland, 2 P. W. 506; Ross v. Ewer, 3 Atk. 156; Guy v. Dormer, T. Raym. 295; 54 Geo. 3, c. 168. SECT. 11. Re-enacts the 23d section of the Statute of Frauds, and SECT. 12. Saves the provisions of 11 Geo. 4, and 1 Will. 4, c. 20. SECT. 13. SECT. 10. Publication was some act of the devisor from Publication. which it could be concluded, that he intended the Cru. Dig. VI. instrument so published to operate as a will. In 65. SECT. 13. 1 Com. R. 196.. Trimmer v. Jackson, 4 wicke, C., 8 Atk. 161. 4th Rep. of R. P. Comm. p. 20. evidence of this act an indorsement was usually Peate v. Ongley, made. Thus the words "signed and published by the said A. B., as and for his last will and testament," were sufficient evidence of publication; and where the words "sealed and delivered" were put above the place where the witnesses were to subscribe, it was adjudged that Per Lord Hard- this was a sufficient publication. This publication was, in the eye of the law, an essential part of the execution of a will, and not a mere matter of form; and perhaps, when an instrument had not been attested, it might be reasonably doubted, whether it was finally determined upon as complete, or whether it was intended to be kept as a subject for consideration; and therefore some act might be held necessary to show a final intention of giving effect to it. But the act of signing or acknowledging it in the presence of witnesses, is as complete a declaration of intention as could be made by any form of words; and now this is made indispensable, there appears to be no occasion for imposing the further ceremony of publication. These are the probable reasons which induced the legislature to dispense with the publication of wills in future, by the enactment of this clause. Qualification of p. 19. SECT. 14. The Statute of Frauds required "credible" witnesses for the attestation of a will: and upon that expression several questions arose.-1st, What was meant by credible witnesses?-2d, SECT. 14. Hillyard v. Jen 514. 557. Burn's Eccl. Law, 73. cution of the will, they could become credible by Hudson's case; any subsequent occurrence ?-3d, Whether wit- Anstey v. Dowsing, Stra. 1253; nesses, who were not credible on account of their having had interests given to them by the will, nings, Carth. were credible witnesses to support the will for Baugh v. Hollothe benefit of other parties? These questions way, 1 P. W. occasioned considerable litigation. It was held, that persons taking any direct or indirect benefit under the will, even creditors, where debts were charged on freehold estates by the will, were not credible witnesses, but that persons so circumstanced became credible, when they had received or released their interests. To remove some of the inconveniences of the decisions, that persons entitled to benefits under the will were not credible witnesses, it was thought necessary to pass an act, 25 Geo. 2, c. 6, (which is said to have been prepared by Lord Hardwicke,) to declare that such persons should be credible, but that any gift to them should be void. But this act was not effectual in removing all the difficulties that had arisen upon the construction of the word "credible ;" for the case of Wyndham and 1 Burr. 417. Chetwynd came into consideration soon afterwards, in which the question was, whether persons who were creditors at the time of attestation, though their debts were discharged before the day of trial, were credible witnesses within the Statute of Frauds. One feature of this case |