20 N.C. 40 | N.C. | 1838
The 11th section of the act of 1784, (see 1 Rev. stat. ,c. 122 sec. 1,) requires a will of lands, to be subscribed by two witnesses in the presence of the testator, no one of which shall be interested in the devise of the said . lands. This court determined mthe case of Allison v. Allison, 4 Hawks, 141, that a witness to such a will, wTho was interested at the time of attestation, was incompetent to prove the will; and that no subsequent release would render -him competent. This decision arose upon the peculiar phraseology of the 11th section. The 15th section of the s.ame act, (1 Rev. stat. c. 122, sec. 2,) is couched in different terms; it declares that ho nuncupative will in any wise shall be good, where the estate exceeds two hundred dollars, unless proved by two'credible witnesses, present at the making thereof. The section in our act, is mainly taken from the 19th section of the English statute of frauds. That section" in the statute of frauds declares, “ that no nuncupative will shall be good, when the estate thereby bequeathed shall exceed thirty pounds, that is not proved by the oaths of three witnesses.” This statute having said nothing as to the qualifications of these witnesses, it was afterwards thought proper to declare, (stat. 4, Ann, ch. 16, sec. 14,) “that all such witnesses as are and ought to be allowed to be good wit
Per Curiam. Judgment affirmed.
