mit the will to probate, did, in this, and ought in all cases, to accompany the copy itself, the Court, I conceive, are bound to decide on the legality of such proof. For it is a well known practice of surrogates, to grant probate of wills, on proof by no means sufficient to pass real estates, in order that the personal may be properly disposed of, leaving disputes respecting realties to the [*] proper tribunals. It appears, on the face of the instrument in question, that two witnesses were called; the surrogate, as it seems, aware that the evidence of the subscribing witness, Peter Johnston, was not sufficient, admitted Ort Vanpelt, one of the executors, to prove that this will was executed in due form of law. And the question now arises, can an executor be a competent witness to prove a will. It is contended by the counsel for the defendant, that he can; a nur..ber of cases have been cited in support of this opinion, and the noted one of Lowe and Jolliffe much relied on. But it must be remembered, that Dovey, the executor of Jolliffe, released a legacy of 2001. which he was to receive as a compensation for his services, before he was admitted as an evidence; had Ort Vanpelt released his claim to all compensation for his services as an executor, I think he would have stood on equal ground with Dovey. As it does not appear that this was done, under the general principle that he who is interested in or receives a benefit from a will, shall not be permitted to prove it, I am of opinion that Ort Vanpelt was not a credible witness, within the meaning of the law. Had the executors a power to sell?

If they had, this must have arisen under the general one of the estate's being liable to be sold for the payment of debts, or the particular claim empowering them to sell on the account of the marriage of the widow. The first, as there was personal estate nearly sufficient to satisfy all demands, was not much insisted on: on the second point much was said. It is, indeed, a very hard matter to come at the whole intention of the testator, in an instrument so badly drawn as the one under examination; but it appears évident, that he intended his widow, as head of the family, should have possession of the whole estate during her widowhood, for their maintenance; and if she should marry, then the estate to be sold, and equally divided between her and his children, at the disposal of his executors. But I think, the words in which this intention is expressed, do not [*] favor the conclusion drawn by the counsel for the defendant, that his estate was to be sold on the event of her death, as well as of her marriage, The words are, "if my said wife Catharine, doth marry, that then my whole estate shall be sold,

and an equal division made in four parts, &c." He could not then, whilst thus directing a division of his estate into four parts, have in idea, the death of his widow, or he would most probably, on that event, have divided it into three parts, amongst his three children. Though I do not recollect that this was noticed by the counsel for the plaintiffs on the argument, it strongly inclines me to believe, that he intended. the sale only as a consequence of her marriage. As she died before him, the estate was to be equally divided between his children; and this might be done by dividing the land, or selling it, and dividing the proceeds as they might agree. Was the award admissible before the jury?

I have ever understood, that parties giving bond with a penalty to abide the award of arbitrators, were at liberty to make their election to so abide the determination of the arbitrators, or submit to the penalty of the bond. This principle is laid down in all the books I have had an opportunity of consulting, and is, I believe, universally so understood in New-Jersey. In the present case, as the possession had gone counter to the award for many years, it must have been understood, that the party, holding such possession, had made his election, and that the remedy of his opponent was a suit on the bond. If this is correct, the award was irrelative to the point in issue, and as it might have an improper influence on the jury, was inadmissible.

I would now, once for all, observe, that I consider it as my misfortune, when I differ in opinion from my learned brethren, with whom I am associated; and I freely acknowledge that whenever this difference takes place, from their superior legal attainments, there are strong reasons to believe my opinion erroneous; yet, as long as I shall have the honor of a seat on this bench, [*] I must have an opinion subject to no control but that of my conscience, and what I conceive to be the laws of my country.

I am, therefore, in the present case, after much consideration, of opinion, that a new trial should be granted, not as prayed for by the counsel for the plaintiffs without costs, but on the usual terms, the payment of costs.

PENNINGTON, J.-The state of the case, and the arguments of counsel, bring up three points of controversy, for the consideration and determination of the court.

1st. The admission of the transcript of the will of Isaac Snedeker to be read in evidence, and its effect as to passing real estate.

2d. The construction of the will, so far as it respects the creation of an authority in the executors to sell the landed estate, in the event that happened.

3d. The effect of the submission and award of arbitrators, between the father of the lessors of the plaintiff, and Abraham Vantine, under whom the defendants claim title.

As to the first point, it is in the first place contended, by one of the plaintiff's counsel, Mr. Leake, that a transcript of a will, devising real estate, cannot be read in evidence in a controversy respecting the devise. This is true, if it is to be considered as a common-law mode of proof; but our act of Assembly hath expressly, and in terms authorized it. That position, therefore, is wholly unfounded; even at common law, a probate of a will, in certain cases, is admitted in evidence: Loft 362. It is, however, contended by the counsel for the plaintiff, that the transcript does not furnish sufficient evidence of the proof of the execution of the will, in conformity to the requisites of the statute for passing real estates. One answer given to this, by the counsel for the defendant is, that the proof of the will need not appear, nor the manner of making the proof; that if it [*] is once on the record, and duly certified, it is sufficient at least to put the adverse party to disprove it. I apprehend that this is giving a construction to the acts that they will not bear. The act of 1713-14, Paterson 5, declares, that all wills and testaments, made and executed in a particular manner, pointed out by the act, and regularly proved and entered upon the books of record, or registered in the Secretary's office, shall be sufficient to pass real estate; and that the books in which they are registered and recorded, may be given in evidence, &c. I ask, the books in which are registered and recorded what? The answer is, wills and testaments regularly proved; under this act the court will look into the manner of proof, and see that the solemnities made necessary by the law have been complied with. The 7th section of the act of 7th June, 1799, authorizes the reading in evidence, a transcript of the record of wills, certified by the register of the prerogative office. It is true, that the words of this section go farther than the former act; and declares, such certified transcripts of wills, shall be as good, effectual, and available in law, as if the original wills or testaments, or the books in which they are registered or recorded, were then and there produced and proved. I cannot bring my mind to believe, that the legislature intended by this section, to prohibit the court from examining into the manner of proof, or that the certificate should be conclusive evidence of the due execution of the will; and that it contains the requisite solemnities to devise real estates. The words of the section are, however, too strong to be rejected. I take it, therefore, that a transcript of a will,

certified by the register of the prerogative office, may be read in evidence, even without the proofs; but that the fact of its being duly executed to devise real estates, is still open to the jury, and yet to be proved; that a transcript thus circumstanced is not even prima facie evidence of the due execution of a will with the proper requisites to devise real estates. This must be made to appear either by witnesses, in the course of a common law examination, or by endorsements [*] on the will, taken by the surrogate. Should this not be made out by the party producing it, it can avail nothing as a will to pass real estates. It appears to me, a contrary construction would lead to endless fraud and abuse. Another answer given by the counsel for the defendant is, that it doth sufficiently appear that the will hath been duly executed, in the manner required by the statute, to pass real estates; and I incline to that opinion. It is not necessary, that all the subscribing witnesses should be called to prove the will; the practice is to take one of them, and by him to prove that the testator executed the will in the presence of himself and the other two witnesses; and that they all subscribed their names to the same, in the presence of the testator.(a) It is true, that an instrument ought to be proved by the subscribing witnesses, in case they can be had. But if not, the next best evidence is to be received. In this case, a by-stander was called; but I think not before the subscribing witnesses were properly accounted for. The will was proved 18 years after the time of its execution; one of the subscribing witnesses was called; he testified to his own hand writing, and that he believed the testator executed the will; but from length of time could not recollect the transaction. And also, that the other subscribing witnesses were both dead, as he had heard, and verily believed; a person present at the execution of the will was then called, and he swears to all the requisites to constitute a will for devising real estates. This appears to me a regular transaction, and sufficient prima facie to authorize a jury to find the will duly executed, unless the objection to the competency of the witness, he being an executor named in the will, should prevail. The modern and most approved cases in the English books, on this subject, and one as far back as the time of Lord Chief Justice Hale, prove, that an executor may be a witness to establish a will, unless he take an interest under it. (b) The distinction between a trustee and an executor in trust, hath no solid basis to rest on; that he is liable to devastavit, is no more

(a) 1 Saun. Pl. and Ev., 932.-Ed.

(b) Ib. 934.-Ev.

than every trustee is liable [*] for corrupt or fraudulent acts respecting the trust; that he is entitled to the residue, if a substantial objection cannot apply in this case, where the residue is disposed of in express terms; nor does the practice in this state, of allowing a reasonable compensation for services performed by an executor, (a) in my view of the subject, alter the case. Is an agent or factor disqualified as a witness, to prove the authority under which he acts, because he is to have a reasonable compensation for his services? I think not. I am, therefore, of opinion, that the Chief Justice did right, both in admitting the transcript to be read in evidence; and also, in instructing the jury, that the will was duly proved to pass real estates.

Under the second head, the counsel for the defendant, on the argument raised two points:

1st. That an authority to the executors to sell the real estate, arose out of the general intent of the testator, apparent on the face of the will, when the different parts are compared with each other.

2d. An implied authority for the like purposes, growing out of the clause in the will, devising the remainder of the real and personal estate, after the debts, funcral charges, and the legacy should be paid.

As to the first point, the general law is, that the intent of the testator is to govern in the construction of wills, when by law it may. I have not been able, however, to discover any intention on the part of the testator, that the land should be sold, in the event that hath happened. After ordering the payment of his debts, funeral charges and a small legacy to his son, for his birth right, he directs that the remainder of his personal and real estate, should be divided in equal parts among his wife and three children, but also provides, that the whole of his estate, both real and personal, should be and remain in the hands of his wife as long as she remains his widow. How could real estate remain in the

hands of his wife, if it was sold? Nor can it easily be supposed, that he [*] intended that his wife and children should be turned out of doors; and his wife to keep possession of the money arising from the sale of the estate; and when she married or died, a dividend to be made. It appears to me more reasonable, that he intended she should keep possession of the real estate, for the maintenance and support of herself and children. This opinion is strengthened, by an express clause in the will, authorizing, or rather directing a sale of the estate, in case of the marriage of his

(a) Vid. Voorhees v. Stoothoff, 6 Halst. 149.