dissenting.
After a careful consideration of the able arguments made in this case and also a like examination of the authorities, I am unable to concur with the opinion as expressed by the majority of the court, except that part which holds that the English statute of 25 George II is not in force in this state.
I cannot escape the conclusion that the statute of wills (iChapter 84, Revised Code of 1893, p. 635) is independent of and unaffected by Chapter 537, Volume 16, Laws of Delaware (.Revised Code of 1893, 798), which abolished the common-law rule excluding, on account of interest, the evidence of witnesses in courts of jus*465tice and of parties to actions and suits. I am of the opinion that the latter statute has nothing to do with witnesses to wills, but that the statute of wills imposes a disability of its own by which a person having a beneficial interest in a will, at the time of the execution thereof, is excluded from being an attesting witness, wholly distinct from the disability in consequence of interest under the general rule at common law.
The two statutes in question are not positively repugnant to each other and irreconcilable. It requires no strained and unreasonable construction for them to stand together and be administered without conflict or inconvenience. Indeed, it seems to me that they deal with different subjects, and that one is not affected by the other. I think this is a fair and reasonable conclusion, consistent with the rules of statutory construction as well as with public policy; and it guards the policy of the statute of wills and prevents frauds. As was said in Hawes v. Humphrey, 9 Pick (Mass.) 350, 20 Am. Dec. 481:
“The object oí the statute was to prevent frauds as well as perjuries. Wills are frequently made by a testator in extremis, or when he is greatly debilitated by age or infirmity, when frauds may be practiced upon him with facility by the crafty and designing; and it was the intention of the statute to guard against such practices, and to protect the testator by surrounding him with disinterested witnesses at the critical and important moment when he is about to execute his will. They are to be disinterested and credible also, at the time of attestation, because in some sense they are made the judges of the testator’s sanity.’’
I think the words “credible witnesses,’’ used in the statute of wills, mean disinterested as well as otherwise competent witnesses. And section 4 of the act furnishes the strongest inference that this is so. By this section a creditor of the testator, although provision is made in the will for the payment of his debts, or a taxable, although the will contains a devise, or bequest, to the trustees of the poor, or to any person, or institution, for a public purpose, may be a witness to the will. This exception clearly shows it was not the intention of the statute that a person otherwise beneficially interested under the will should be a witness. It seems to me that the statute of wills must be read and understood in connection with the subject-matter thereof, the evils to be *466avoided and the intention to safeguard the property interests of persons approaching death. The test to be applied in construing the two statutes in question is not the qualification of witnesses generally in legal proceedings.
I find that an executor, not otherwise interested in a will, is, under statutes similar to ours, according to the weight of authority, competent tó witness a will, but I am equally clear that it was both unnecessary and erroneous to base such competency upon the statute permitting parties in interest to testify in civil actions as was done in the case of Spiegelhalter’s Will, 1 Penn. 5, 39 Atl. 465. The conclusion reached by the court in that case was, I believe, correct, but the ground upon which the decision should have been based is that the executor took no beneficial interest under the will.
A fuller discussion of the questions raised in this case is unnecessary in a dissenting opinion.
I am constrained to hold that, inasmuch as Mrs. Flood is a beneficiary under the will, she is not a credible witness within the meaning of the statute, and the will should be held void for want of two credible witnesses.
The opinions were certified to the Superior Court, which thereupon made the following order:
And now, to wit, this twenty-eighth day of June, A. D. 1915, the opinion of the Court in Banc having been duly certified to this court, in accordance therewith, it is now ordered, adjudged and decreed by this court that the decree of the register of wills, in and for Sussex County, admitting to probate the last will and testament of Luvina Layton, deceased, be and the same is hereby affirmed, and the said appeal from said decree dismissed.
And it is further ordered, adjudged and decreed that the costs in this case before the register of wills, in the Court in Banc, and in the Superior Court, including expenses of attorneys on both sides, be, and they are, hereby taxed in the sum of two hundred and twenty-five dollars and thirty-one cents, to be paid out of the estate of the said Luvina Layton, deceased.