jury before whom ſuch will ſhall be conteſted. And in a much later caſe[1] the teſtimony of three witneſſes, who were creditors, was held to be ſufficiently credible, though the land was charged with the payment of debts; and the reaſons of the former determination were adjudged to be inſufficient.
Another inconvenience was found to attend this new method of conveyance by deviſe; in that creditors by bond and other ſpecialties, which affected the heir provided he had aſſets by deſcent, were now defrauded of their ſecurities, not having the ſame remedy againſt the deviſee of their debtor. To obviate which, the ſtatute 3 & 4 W. & M. c. 14. hath provided, that all wills, and teſtaments, limitations, diſpoſitions, and appointments of real eſtates, by tenants in fee-ſimple or having power to diſpoſe by will, ſhall (as againſt ſuch creditors only) be deemed to be fraudulent and void: and that ſuch creditors may maintain their actions jointly againſt both the heir and the deviſee.
A will of lands, made by the permiſſion and under the controll of theſe ſtatutes, is conſidered by the courts of law not ſo much in the nature of a teſtament, as of a conveyance declaring the uſes to which the land ſhall be ſubject: with this difference, that in other conveyances the actual ſubſcription of the witneſſes is not required by law[2], though it is prudent for them ſo to do, in order to aſſiſt their memory when living and to ſupply their evidence when dead; but in deviſees of lands ſuch ſubſcription is now abſolutely neceſſary by ſtatute, in order to identify a conveyance, which in it's nature can never be ſet up till after the death of the deviſor. And upon this notion, that a deviſe affecting lands is merely a ſpecies of conveyance, is founded this diſtinction between ſuch deviſes and teſtaments of perſonal chattels; that the latter will operate upon whatever the teſtator dies poſſeſſed of, the former only upon ſuch real eſtates as were his at the time of executing and publiſhing his will[3]. Wherefore no after-
