Shaw C. J.
drew up the opinion of the Court. The single question presented for the consideration of the Court, in this case, is, whether the will of John Foster deceased, was duly attested by three credible witnesses, pursuant to the statute in force at the time the will was executed, requiring it to be so executed, in order to give it the effect of passing real estate The circumstances supposed to render two of the witnesses, Willard and Newell, disqualified, on account of interest, are detailed in the statement of facts agreed by the parties. The will contained a bequest to the first parish in Cambridge, of one thousand dollars, in trust to invest that sum and apply the income annually towards the support of the Unitarian ministry in that parish. Willard and Newell were at the time members of that parish, taxed and taxable there, of whom one owned a pew and the other did not. Other circumstances are stated,, which are not material to the present inquiry.
Whether these circumstances did give the witnesses, as members of this parish, an interest, in the establishment of this will, being a gift to the parish in trust for themselves, is a question which the Court have not thought it necessary to decide, and they wish to be considered as giving no opinion respecting it. But the Court are of opinion, that by force of the statute of 1792, c. 32, these persons, having no other interest than that of corporators, or members of the parish, were good witnesses within the statute regulating the execution of wills. That act provided, that a will disposing of real estate, should be attested and subscribed in the presence of the devisor, by three or more credible witnesses, or else should be utterly void and of no effect. This was taken from the previous English statute on-the same subject, which had received a judicial construction in the English courts. It is obvious, that if the word “ credible ” were used in a loose popular sense, as descriptive of persons of good moral character and reputation in fact, and personally worthy of belief, it would be far too indefinite to be the ground of a practical rule, and would leave each will, and indeed each devise in every will, to be established or overthrown, according to the estimate which a jury might form of the moral qualities and consequently of the general credit due to the testi[17]*17mony of either or all of the witnesses. It will be recollected, that by the English practice the due execution of the will is tried, in each case, when the claim to a devise under it is drawn in question ; and this in the common law courts, and in the ordinary course of proceeding in a court of common law, by a court and jury; whereas here, the validity of the will, embracing its due execution and attestation, is tried once for all, in the probate court, — with the aid of a jury, in the Supreme Court of Probate, in certain cases, — and such trial is conclusive of the question of due execution, as well for all devises of real estate, as for other purposes. Considering how indefinite the word “ credible ” is, if used in the general sense, courts were at first inclined to consider it thrown out, not as 'prescribing a legal qualification, but as a caution to those, who might be called on to weigh and judge of the credit actually due to the witnesses. It is now useless to allude to the elaborate discussions upon this subject, and especially to the conflicting opinions of Lord Mansfield and Lord Camden, so ably supported on both sides by learning and force of talent; they are familiar to every lawyer.
It was after these discussions had taken place, that our statute of 1783 was passed. The judicial construction put upon it, was stated by Parsons C. J. in Amory v. Fellowes, 5 Mass. R. 229. In the opinion of the Court it was used in the sense of competent and “ those witnesses are credible, whom the law will trust to testify to a jury, who may afterwards ascertain the degree of credit they have.” The same position is stated in Hawes v. Humphrey, 9 Pick. 361, in which Mr. Justice Wilde, speaking for the Court, says, “ The witnesses are competent, and therefore credible within the meaning of the statute ; for I think it clear, that the word “ credible ” is used in the statute in the abstract sense, as denoting persons, capable of obtaining credit. Now every person who is allowed to give testimony in a court of justice, may be believed ; otherwise it would be absurd to allow him to testify.”
Assuming then, that .the word credible, in this statute, is used to designate a person entitled to be examined in a court of justice, subject, as in all other cases, to have his actual credit weighed and considered by the court or jury called to consider [18]*18it, then the statute of 1783 is to be construed as if this description were substituted for the word “ credible.” It is to be expounded, as if it had provided, that the will must be attested by three persons competent to be examined as witnesses, in a court of justice, upon the question whether the will was duly executed and by a person of sound and disposing mind. This is confirmed by the 13th section of the statute, which provides, that if any person shall have attested a will, to whom a bequest is made, and shall have been paid &c. before he shall give his testimony concerning the execution of such will, such person shall be admitted as a witness to the execution, his credit being subject to the consideration of the court or jury as in other causes. Though there is a manifest inconsistency between this and the 11th section, which declares all such bequests void, arising obviously from a misapprehension of the terms of 25 Geo. 2, c. 6, from which this is' manifestly taken, yet it indicates clearly the understanding of the legislature, that the species of credibility, requisite to make a witness capable of attesting, was very different from that title to actual credit which he might have with the court and jury, when he should come to testify. He might, from bad character or otherwise, be entitled to very little credit, at the time of testifying ; still, if he was not incompetent at the time of attestation, the will might be well attested, although the fact of execution and the fact of attestation by such witness, denied by himself, were proved by other competent and satisfactory evidence.
Having thus arrived at the meaning and judicial construction of the term “ credible witness,” and found that it is one who at the time of attestation would be entitled to be heard and examined as a witness, in a court of justice, on the question of such execution, we are to learn from the rules of common law, or statute provisions, what qualities render a witness competent or otherwise. In general, one is incompetent, who is rendered infamous by conviction of an infamous offence, or who is interested m the subject matter of the inquiry. This, however, is a very general description, and is subject to many exceptions. But without stating them, the result is, that if a person be so interested as to render him incompetent in other cases of judicial inquiry, at the time of attestation, (unless by the force of some [19]*19gift or bequest in the will, which is declared void by the 11th section of the act,) whether such interest is created by statute or by a rule of the common law, or whether by a statute made prior to this or by one made after it, seems wholly immaterial.
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Shaw C. J.
drew up the opinion of the Court. The single question presented for the consideration of the Court, in this case, is, whether the will of John Foster deceased, was duly attested by three credible witnesses, pursuant to the statute in force at the time the will was executed, requiring it to be so executed, in order to give it the effect of passing real estate The circumstances supposed to render two of the witnesses, Willard and Newell, disqualified, on account of interest, are detailed in the statement of facts agreed by the parties. The will contained a bequest to the first parish in Cambridge, of one thousand dollars, in trust to invest that sum and apply the income annually towards the support of the Unitarian ministry in that parish. Willard and Newell were at the time members of that parish, taxed and taxable there, of whom one owned a pew and the other did not. Other circumstances are stated,, which are not material to the present inquiry.
Whether these circumstances did give the witnesses, as members of this parish, an interest, in the establishment of this will, being a gift to the parish in trust for themselves, is a question which the Court have not thought it necessary to decide, and they wish to be considered as giving no opinion respecting it. But the Court are of opinion, that by force of the statute of 1792, c. 32, these persons, having no other interest than that of corporators, or members of the parish, were good witnesses within the statute regulating the execution of wills. That act provided, that a will disposing of real estate, should be attested and subscribed in the presence of the devisor, by three or more credible witnesses, or else should be utterly void and of no effect. This was taken from the previous English statute on-the same subject, which had received a judicial construction in the English courts. It is obvious, that if the word “ credible ” were used in a loose popular sense, as descriptive of persons of good moral character and reputation in fact, and personally worthy of belief, it would be far too indefinite to be the ground of a practical rule, and would leave each will, and indeed each devise in every will, to be established or overthrown, according to the estimate which a jury might form of the moral qualities and consequently of the general credit due to the testi[17]*17mony of either or all of the witnesses. It will be recollected, that by the English practice the due execution of the will is tried, in each case, when the claim to a devise under it is drawn in question ; and this in the common law courts, and in the ordinary course of proceeding in a court of common law, by a court and jury; whereas here, the validity of the will, embracing its due execution and attestation, is tried once for all, in the probate court, — with the aid of a jury, in the Supreme Court of Probate, in certain cases, — and such trial is conclusive of the question of due execution, as well for all devises of real estate, as for other purposes. Considering how indefinite the word “ credible ” is, if used in the general sense, courts were at first inclined to consider it thrown out, not as 'prescribing a legal qualification, but as a caution to those, who might be called on to weigh and judge of the credit actually due to the witnesses. It is now useless to allude to the elaborate discussions upon this subject, and especially to the conflicting opinions of Lord Mansfield and Lord Camden, so ably supported on both sides by learning and force of talent; they are familiar to every lawyer.
It was after these discussions had taken place, that our statute of 1783 was passed. The judicial construction put upon it, was stated by Parsons C. J. in Amory v. Fellowes, 5 Mass. R. 229. In the opinion of the Court it was used in the sense of competent and “ those witnesses are credible, whom the law will trust to testify to a jury, who may afterwards ascertain the degree of credit they have.” The same position is stated in Hawes v. Humphrey, 9 Pick. 361, in which Mr. Justice Wilde, speaking for the Court, says, “ The witnesses are competent, and therefore credible within the meaning of the statute ; for I think it clear, that the word “ credible ” is used in the statute in the abstract sense, as denoting persons, capable of obtaining credit. Now every person who is allowed to give testimony in a court of justice, may be believed ; otherwise it would be absurd to allow him to testify.”
Assuming then, that .the word credible, in this statute, is used to designate a person entitled to be examined in a court of justice, subject, as in all other cases, to have his actual credit weighed and considered by the court or jury called to consider [18]*18it, then the statute of 1783 is to be construed as if this description were substituted for the word “ credible.” It is to be expounded, as if it had provided, that the will must be attested by three persons competent to be examined as witnesses, in a court of justice, upon the question whether the will was duly executed and by a person of sound and disposing mind. This is confirmed by the 13th section of the statute, which provides, that if any person shall have attested a will, to whom a bequest is made, and shall have been paid &c. before he shall give his testimony concerning the execution of such will, such person shall be admitted as a witness to the execution, his credit being subject to the consideration of the court or jury as in other causes. Though there is a manifest inconsistency between this and the 11th section, which declares all such bequests void, arising obviously from a misapprehension of the terms of 25 Geo. 2, c. 6, from which this is' manifestly taken, yet it indicates clearly the understanding of the legislature, that the species of credibility, requisite to make a witness capable of attesting, was very different from that title to actual credit which he might have with the court and jury, when he should come to testify. He might, from bad character or otherwise, be entitled to very little credit, at the time of testifying ; still, if he was not incompetent at the time of attestation, the will might be well attested, although the fact of execution and the fact of attestation by such witness, denied by himself, were proved by other competent and satisfactory evidence.
Having thus arrived at the meaning and judicial construction of the term “ credible witness,” and found that it is one who at the time of attestation would be entitled to be heard and examined as a witness, in a court of justice, on the question of such execution, we are to learn from the rules of common law, or statute provisions, what qualities render a witness competent or otherwise. In general, one is incompetent, who is rendered infamous by conviction of an infamous offence, or who is interested m the subject matter of the inquiry. This, however, is a very general description, and is subject to many exceptions. But without stating them, the result is, that if a person be so interested as to render him incompetent in other cases of judicial inquiry, at the time of attestation, (unless by the force of some [19]*19gift or bequest in the will, which is declared void by the 11th section of the act,) whether such interest is created by statute or by a rule of the common law, or whether by a statute made prior to this or by one made after it, seems wholly immaterial. The statute of 1783 was prospective ; it looked to the future ; it intended to declare, that thereafterwards, when a will of lands should be executed, it should be done in presence of three persons so situated that in case they should live, and not afterwards become incapacitated by infamy, after acquired interest, or otherwise, from testifying to the execution of such will, they should be competent so to testify before the proper tribunal to consider and decide that question. They were to be thus qualified, that they might become testifying witnesses, to prove the will.
Such being the purpose and operation of the statute of 1783, it becomes necessary to see how it is affected by the statute passed ten years afterwards, St. 1792, c. 32, entitled an act for admitting inhabitants of towns and certain other corporations, to be witnesses. It provides, that in all suits at law, whether of a civil or criminal nature, wherein any town, precinct, or parish, may be a party or interested in the event of the suit, any inhabitant of such town or parish, shall and may be admitted as a competent witness, provided he has no other interest than as such inhabitant, and is not otherwise legally disqualified, any law, usage or custom to the contrary notwithstanding.
A question was made, but not much pressed, whether a proceeding in the probate court, seeking the proof and establishment of a will of lands, is a suit at law within the meaning of this statute ; but of this there can be no doubt. The case of a suit in the probate court is within all the reasons, upon which the statute was founded, and is also within the letter. It is a suit in which adverse parties are seeking to establish their legal rights, both to real and personal property. In the case already cited for another purpose, Amory v. Fellowes, a question arose, whether a dedimus potestatem from the probate court, had not issued too soon, it being before the will proposed to ue proved had been filed. Mr. Chief Justice Parsons, who was distinguished for his accuracy and precision in the use of legal language, says, “ in the probate court, when the lis con[20]*20testata is upon the execution of a will, the will, as the founJa tion of the suit, must be present in court, before a dedimus can issue. The offering of the will for probate is the institution of the suit.” It is a suit, by which all titles to real estate by devise are to be settled ; it may be tried by jury or otherwise, according to circumstances ; it proceeds on the "egal rules of evidence, and must be conducted and determined upon legal principles. We can entertain no doubt that it was intended to extend to all judicial controversies, in which legal rights are drawn in question.
This statute then affects the operation of the former, by modifying and to some extent, altering the rule, by which, before this, a witness would be rendered incompetent, and therefore not a credible witness. It is immaterial whether this be called a repeal of the prior act or not. So far as it changes and affects its operation, it is a repeal in express terms, by declaring inoperative any law, usage or custom, which would stand in the way of its full operation. But perhaps it is better not to consider it a repeal, but rather a modification of the subject matter on which the former law is to operate. The former law provided, that a will should be executed before three persons, competent to come into court and testify to its execution ; if the latter act determines who shall be competent, both have their full effect. The first act does not confine the admissibility to those who were then by law qualified to testify and so were deemed credible; but it extends to those who should be so, at the time of the execution, then future. Suppose the statute of 1805, for the distribution of the estates of intestates, had so modified the preexisting law, as to exclude brothers’ and sisters’ children from taking by right of representation equally with surviving brothers and sisters, of one who had died without children or father. Suppose such person had made a will, and a nephew, the child of a deceased brother, was an attesting witness. By the law as it stood, when our statute of wills was passed, and as it now stands, such nephew would have a direct interest, because by defeating the will and establishing an intestacy, he would take a share in the devised estate. Is it not very clear that the operation of the statute of wills would have been altered and modified in its operation and effect by the statute of distributions ?
[21]*21So as tne law stands now, the right of representation among the descendants of brothers and sisters, extends only to children. Of course grand-nephew swould be wholly disinterested, and would therefore be competent, and by force of the statute, credible witnesses. But supposing the statute of distributions were now altered so as to admit lineal descendants of brothers and sisters, by right of representation, indefinitely. Grand-nephews would then be interested in establishing the intestacy of a grand-uncle, dying without issue, and to that end in defeating his will. They would, of course, by the operation of this law, be placed in such a condition as to be interested, and incompetent, and therefore not credible witnesses, within the statute. Yet it could hardly be said, with strict correctness, that such modification of the statute of distributions had repealed in any respect the statute of wills. The former continues to have its full, natural and legal operation, according to the plain intent of the legislature. The result is, that it was not those, who by the law as it then stood, were interested and incompetent, and of course not credible, that the statute intended to exclude ; but those who should be so, when called to attest a will, and afterwards to testify respecting its execution. It was not the purpose of this statute to determine who should be competent and credible, but to require those as attesting witnesses, who should be credible by being competent, according to the laws in force, for the time being.
It may be proper here to take notice of an argument derived from the case of Hawes v. Humphrey, 9 Pick, and which was a good deal relied upon. The argument stands thus ; the Court there went into a considerably minute consideration of the facts and circumstances, to show that the witnesses had no disqualifying interest, all of which would have been unnecessary and immaterial if the construction now put upon the statute of 1792 is sound, and therefore that case is an authority against such construction. That case seems to have been well considered and is certainly a good authority, for all the principles decided by -t. But it is obvious that the construction of this stf.tute could not come in question in that case, and the cas has no bearing upon it, by implication or otherwise. In tha.. case the witnesses were objected to on the ground of being in[22]*22terested as inhabitants of South Boston, within the .erritory of which the proposed school and church were to be established' by the donations made in the will. But South Boston was not a town or parish and had no corporate character of any sort. It was a part of the city, defined by territorial limits. The witnesses, if benefited at all by the will, were not to be benefited as being members of any corporation, but as being included in the description of persons, to whose benefit the bequest would enure. The statute therefore did not apply to them.
A strong distinction is made in the learned argument for the appellants, between attesting witnesses, and testifying witnesses. It is undoubtedly true, that those who attest a will, may, through various contingencies, never be called to testify. They may die or go abroad, become infamous or interested. But the object and purpose of the statute is to require attesting witnesses, in order that they may afterwards become testifying witnesses, and it is their qualification in the latter capacity, which constitutes the rule and measure of their qualification in the former. The question is, what was the meaning and intent of the legislature in requiring the attestation of credible witnesses. No statute, and no usage or rule of common law, fixes the credibility or competency of an attesting witness ; but as the leading object and purpose of attestation is to provide for ob taining the testimony of those who may afterwards be called to prove the will, and as the law does accurately fix the qualifica tions of those who may be admitted to give testimony in matters of judicial controversy in courts of law, the inference is very strong that the legislature referred to the established rule of competency for testifying, to ascertain who were credible as attesting witnesses. It intended to make those who were competent to testify, on the trial, if qualified in like manner, credible witnesses of the execution. On any other construction the term “ credible witnesses,” as designating those required to attest the execution of the will, would be without definite meaning.
But again, it was contended, that the statute of 1792 did not remove the disability and disqualification arising from interest, but only declared that inhabitants of towns and parishes, in suits in which such towns or parishes were interested, should1 [23]*23be admitted as competent witnesses, that is, they were to be admitted as if they were competent witnesses, though interested. If the objection turns upon the mere form of the expression 11 as competent,” we think it is a construction much too narrow and strict, to meet the intent of the legislature. If admitted as competent, they are thereby made competent, as if the language had been, “ shall be deemed, or considered competent.” Then taken in connexion with the proviso, that such witness has no other interest than as an inhabitant of such town or parish and is not otherwise legally disqualified, it is equivalent to declaring that such person’s corporate interest shall not alone be deemed an interest, which renders the witness incompetent. It therefore, in its legal operation, determines that such a corporate interest shall not prevent a witness from being competent, and, of course, credible within the statute of wills.
The Court are therefore of opinion, that whether the witnesses, Willard and Newell, had any interest or not in the establishment of this will, whether if they had any it was direct and certain, or remote and contingent, it was an interest which they had only as parishioners and members of the religious society to which, by the will, a pecuniary legacy was given, and therefore, as they were not otherwise disqualified, they were competent witnesses, and were rightly admitted as such by the probate court.