1. A testator, after devising a very large estate, both real and personal,
to his widow and children, directs that each of the children shall re-
ceive out of it a good education, and that it shall be divided when the
oldest son attains the age of twenty-one, or the oldest daughter the
age of eighteen and marries, unless the widow should marry, or de-
sire an earlier division, in either of which events her share is to be
set apart to her. Until the division takes place, the family residence
is to be kept up for the use of the widow and children, and "the
family expenses, economically made," are to be paid by the execu-
tors out of the "joint funds" of the estate. The testator further di-
rects that his executors shall pay fifty dollars annually to the church,
of which he was a member, so long as the estate remains undivided,
and "a joint stock" for the use of the family. Held--
1. That it was not the intention of the testator that the executors
should keep a separate account against the widow and children
for their respective expenses, but that the entire expenses of the do-
mestic establishment should be a charge upon the common, or
joint fund.
2. That a reasonable construction should be given to the will, in as-
certaining what expenses fall within its provisions, as expenses
"economically made," and that in construing it, the circumstances
under which it was made, the state of the property, and the con-
dition of the family should all be considered.
3. That so construing it, the reasonable expenses of the widow, in
visiting with her youngest daughter and servant, the eldest daugh-
ter, then at school in another State, for the purpose of looking to her
education, might well be regarded as a proper charge against the
estate in favor of the executors.-Moore's Executors v. Moore's Distri-
butees,
242
2. In this State, a married woman, with the assent of her husband, may
make a valid will of her choses in action, in his favor.- (PARSONS, J.,
dissenting.)-Burton et al. v. Holly,
8. Married women are not embraced by the statute of wills of 1806,
(Clay's Dig. 596, § 1,) and could not, by virtue of that statute, make
a valid devise of their real estate.--Baker, et al. v. The Heirs of Chas-
tang,
417
4. Although the will of a married woman be admitted to probate in the
Orphans' Court, yet such probate is not conclusive upon her right to
devise her real estate, and the heir, upon ejectment brought to re-
cover the land attempted to be devised, may call in question the le-
gal effect of the will as a muniment of title, and show that it was
ineffectual to pass the estate, no power to make such will having
been reserved to, or acquired by the testatrix.
lb.
5. A bequest of property in trust for certain slaves, whom the testator
attempts by his will to emancipate, is void, and the property thus
bequeathed falls into the general residuum of the estate for distribu
tion.--Pool v. Harrison,
6. A testator, after giving specific legacies to his wife and children, and
several grand-children, children of a living daughter, bequeathed the
residue of his property as follows: "The remainder of my property,
&c., I give to be equally divided among my legatees. agreeably to the
laws of the State in which I reside." Held-That the words follow-
ing the term, legatees, restrict it to such of the testator's legatees as
could have claimed his estate, had he died intestate, that is, to his
wife and children --Smith et als. v. Martin's Executors,
See ESTATES TAIL AND IN REMAINDER, 1, 2, 3.
EXECUTORS AND ADMINISTRATORS, 5.
1. One, whose debt, without request, has been assumed by a third per-
son, does not thereby become his debtor, and is consequently a com-
petent witness for him, when sued on his promise, to prove the con-
sideration on which it was founded.--Beall & Co. v. Ridgeway,
2. Where the surety on a note extinguishes it, by giving a new note
with a third person as principal, and himself as surety, the principal
in the original note is a competent witness for such third person,
to show that the substituted note was given for the accommodation
of the surety, and under the promise that he would pay it.--Wright,
Adm'r, v. Lewis,
194
3. To render a witness incompetent on the ground of interest, it must
be shown that he will either gain or lose by the effect of the judgment,
or that the record will be evidence for or against him in another suit. Ib.
4. In an action against an attorney for money collected by him on a
note, the principal in the note is an imcompetent witness to prove
that he has paid it to the defendant.--Moore & Jones Adm'rs, v. Hen-
derson,
5. B., for himself and as the agent of C., purchased land on their joint
account, and afterwards relinquished his interest therein to C. The
vendor filed his bill against both, to subject the land to the payment
of the purchase money, and B., having failed to answer, a decree pro
confesso was rendered against him. Held--That B. was a competent
witness for the complainant to prove the price agreed to be paid;
that if his interest was not balanced, it preponderated against the
party, by whom he was introduced.--Crawford et al. v. Barkley, 270
6. A partner, who is still liable to the creditor for the demand in con-
troversy, is not a competent witness for him, to prove that, as be-
tween him and his co-partner, the latter has, by agreement, made the
debt several and assumed its payment.--Hoyt, Ford & Robinson v.
Murphy,
316
7. The interest of a legatee, whose legacy has been paid, is too remote
and contingent, to render him incompetent as a witness for the ex-
ecutor.-Cleland v. Huey et al., Adm'rs,
343
8. The competency of a witness is presumed until the contrary is clearly
shown, and the mere fact that the witness has intermarried with the
daughter of the testator does not show that he is legally interested in
a suit, brought against the executor in his representative character.
The rule would be different, if the suit was against the personal rep-
resentative of an intestate.
lb.
9. If a witness can state the substance of the whole testimony given
by a deceased witness on a former trial, he is competent to testify,
although he cannot repeat the precise language of the deceased. Ib.
10. Where one partner, in a matter connected with the business of the
partnership, does an act to the injury of a third person, which is a
tort by construction or inference of law merely, his co-partner is
equally liable with him for the consequences of the act, and being so
liable, is an incompetent witness for him, when sued alone by such
third person to recover damages for the tort.---Myers v. Gilbert, 467
11. If a witness becomes interested in the event of a pending suit by the
⚫ act of one of the parties, without the assent of the other, he is not
thereby rendered incompetent to testify in behalf of the latter, although
the interest thus created is in his favor.---Jones' Ex'rs v. Hoskins, 489
12. The donor of property is not liable to the donee on a failure of title,
and has, therefore, no such interest in sustaining the title of the donee,
as will exclude him from testifying in his favor.
lb.
13. The credit of a witness cannot be impeached by showing particular
acts of immorality, disconnected with the question of veracity.-Nu-
gent v. The State,
521
14. The payee of a bill is a competent witness for the drawer, in a suit
against him by the endorsee, to impeach its validity.--The State Bank
v. Seawell,
15. The grantor in a deed is a competent witness to impeach it.--Nor-
ton & Wife v. Linton,
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