The question is not whether he will testify in support of or adversely to the establishment of the will, but whether his situation and relation to the testator or testatrix, and the disposition of the property by the will, were such, when the will was made, that he can be admitted to testify at all. Nor is it at all material to the question of competency that the contents of the will were unknown to the witness at the time of attestation. The law does not look to the consciousness or knowledge of a party to ascertain whether he is competent to testify. It is the fact of a present existing interest which disqualifies. If this exists, the witness is incompetent; if no interest is shown, then he is competent, irrespective of his knowledge of an absence of interest in the subject matter in controversy. If, by the terms of the will, its admission to probate would operate favorably to his interests, he is incompetent to attest the execution of the instrument. He then has a direct pecuniary interest in the proof of the fact to which he is called to bear witness.

The principles of law regulating the competency of attesting witnesses to wills are correctly stated in Haven v. Hilliard, ubi supra. It is true that in giving an exposition of the provisions of a statute affecting the validity of the attestation in that case, certain illustrations. were used by the court which seem to give countenance to the doctrine that a witness to the execution of a will may be incompetent even where his interest was adverse to its establishment and validity. But the case itself shows that no point concerning the competency of witnesses so situated was there raised, and that the language of the court, though liable to misapprehension, was not intended as a decision of that question. Certainly so far as it seems to support the proposition that an heir at law, who is disinherited in whole or in part by a will, is incompetent as an attesting witness, the case is contrary to well settled principles, and must be overruled.

Case to stand for trial.52

52 "The statute of wills requires 'three or more credible witnesses,' and the well-settled construction of this and other similar statutes is that the witnesses should be competent, or not disqualified, at the time of the attestation of the will, to be sworn and to testify in a court of justice." Doe, J., in Carlton v. Carlton, 40 N. H. 14, 17 (1859). In that case it was held that an infant under fourteen years of age was presumptively incompetent, but that the presumption might be rebutted. A witness' subsequent incompetency will not affect the validity of the will. Wisehart v. Applegate, 172 Ind. 313, 88 N. E. 501 (1909).

"If the will provides a pecuniary benefit to the attesting witness, though dependent upon the happening of an event which may happen, he has a beneficial interest under it, in contemplation of law; and if the subsequent event upon which the interest depends does not happen, that fact does not relate back and restore competency." Strout, J., in In re Trinitarian Congregational Church and Society of Castine, 91 Me. 416, 423, 40 Atl. 325, 327 (1898).

On the competency of witnesses to wills, see 77 Am. St. Rep. 459, note; 15 Am. & Eng. Ann. Cas. 889, note.

WINSLOW v. KIMBALL.

(Supreme Judicial Court of Maine, 1846. 25 Me. 493.)

WHITMAN, C. J.53 This is an appeal from the decree of the judge of probate, for this county, approving the will of A. G. Winslow, deceased. The instrument was subscribed as usual by three attesting witnesses. But one of them was the wife of a legatee in the will. And it is insisted that this is not a case within Rev. St. c. 92, § 5, rendering bequests to subscribing witnesses void, as the wife was not a legatee; and it must be admitted that, nominally, she was not; and, upon a construction strictly literal, the ground relied upon might be tenable. But statutes are to receive such a construction as must evidently have been intended by the Legislature. To ascertain this we may look to the object in view; to the remedy intended to be afforded; and to the mischief intended to be remedied. The object in view in the provision in question clearly was to prevent wills from becoming nullities, by reason of any interest in witnesses to them, created entirely by the wills themselves. No one can doubt, if it had occurred to the Legislature that the case before us was not embraced in the enactment, that it would have been expressly included. It was a mischief of the precise kind of that which was provided against; and we think may be regarded as virtually within its category.

Accordingly, in New York, where the statutory provision, in this particular, is the same as in this state, a devise or legacy to the husband or wife, the other being a witness to the will bequeathing it, is held to be void, upon the ground, as expressed by one of the judges of the court there, "that the unity of husband and wife, in legal contemplation, is such that, if either be a witness to a will containing a devise or legacy to the other, such devise or legacy is void, within the intent of the statute," and upon the ground, that the statute concerning wills should receive a liberal construction, and one consistent with common sense. Jackson v. Woods, 1 Johns. Cas. 163; Jackson v. Durland, 2 Johns. Cas. 314.

The decree of the judge of probate is affirmed. 54

53 The statement of facts is omitted.

54 The Massachusetts court refused to follow the Maine and New York cases, because it thought their construction of the statute "founded rather upon a conjecture of the unexpressed intent of the Legislature, or a consideration of what they might wisely have enacted, than upon a sound judicial exposition of the statute by which their intent has been manifested," and accordingly, in order not to have to declare void, "not merely the interest which the wife, who was a subscribing witness, would take, by way of dower or otherwise, in the property devised to her husband, but also the whole devise to and for the benefit of the husband, who was not a subscribing witness and whose estate the statute does not assume to reach," declared the whole will void. Sullivan v. Sullivan, 106 Mass. 474, 475, 476, 8 Am. Rep. 356 (1871). See, also, Hodgman v. Kittredge, 67 N. H. 254, 32 Atl. 158, 68 Am. St. Rep. 661 (1892); Fisher v. Spence, 150 Ill. 253, 37 N. E. 314, 41 Am. St. Rep. 360 (1894), and 77 Am. St. Rep. 468, 469, note. The Maine rule was adopted in Massachusetts by St. 1878, c. 122.

In re HOLT'S WILL.

NEEDHAM et al. v. BORDEN et al.

(Supreme Court of Minnesota, 1893. 56 Minn. 33, 57 N. W. 219, 22 L. R. A. 481, 45 Am. St. Rep. 434.)

VANDERBURGH, J.* The will in question here contains a legacy to Georgiana Needham, estimated by the testator at about $400, and it was attested by two witnesses, one of which was E. Z. Needham, who is and was at the time of such attestation the husband of Georgiana. Mrs. Needham is the proponent of the will, and in the probate court objection was made by the contestants, appellants here, to the allowance and probate of the will on the ground that the husband of the proponent E. Z. Needham was not a competent witness to the will.

The action of the probate court, allowing the will, having been affirmed by the district court, the case is brought here on appeal from the judgment of the last-named court.

1. The first question presented involves the competency of the attesting witness E. Z. Needham. Undoubtedly he must have been a competent witness at the time of the execution of the will. This is the established doctrine of the common-law authorities, from the case of Holdfast v. Dowsing, 2 Strange, 1253, down to the present time (1 Red f. Wills, 253; 2 Greenl. Ev. par. 691; Morrill v. Morrill, 53 Vt. 78, 38 Am. Rep. 659); and it is clearly recognized in our statute, (Probate Code, c. 2, § 19), which requires that a will shall be attested and subscribed in the testator's presence by two or more competent witnesses. But, if competent at the time of the execution of the will, their subsequent incompetency, from whatever cause it arises, shall not prevent the probate and allowance of the will, if it is otherwise satisfactorily proven.

The appellants, however, contend that the attesting witnesses must be such as would be competent under the common-law rule, and that they are impliedly not included in the definition of "witness" (Gen. St. c. 73, § 6), because their competency is to be determined as of the time of the attestation, and not as of the time when they may be called to testify on the probate of the will. But this construction cannot be upheld. The cases from Massachusetts are not in point, because there the statutes removing the objection to the competency of witnesses on the ground of interest and of the relation of husband and wife are expressly declared not to apply to attesting witnesses to a will. Sullivan v. Sullivan, 106 Mass. 478, 8 Am. Rep. 356.

The question of the competency of such witnesses in this state is determined by the statute. Gen. St. c. 73, §§ 6, 7, 9, 10. An attesting witness is competent, if he be one who would at the same time be

*The statement of facts is omitted.

COST. WILLS-13

competent to testify in court to the facts which he attests; and so the courts hold. Thus in Jenkins v. Dawes, 115 Mass. 601, an attesting witness is declared to be one who at the time of the attestation would be competent to testify; and in Morrill v. Morrill, 53 Vt. 78, "competency to testify" must exist at the time of the attestation.

The attestation contemplated the subsequent testimony to the facts attested when the will should be proved. The incompetency of the husband or wife to testify where either was an interested party at the common law arose out of the unity of interest and of personal relations. This unity of interest may be removed, and yet, owing to the unity and confidential nature of their personal relations, the commonlaw rule in respect to competency remain, on grounds of public policy. Lucas v. Brooks, 18 Wall. 453, 21 L. Ed. 779; Giddings v. Turgeon, 58 Vt. 110, 4 Atl. 711.

It is conceded that the unity of interest, so far as relates to property, has been done away with by statute (Wilson v. Wilson, 43 Minn. 400, 45 N. W. 710), and the general disqualification to testify on the ground of interest is removed by Gen. St. c. 73, § 7; but it is denied that the statute has removed the general incompetency growing out of the marriage relation. But the only limitation upon the competency of either is found in section 10, which provides that neither party. shall be examined without the consent of the other. They are not thereby made incompetent witnesses, nor are they to be classed as such, though their right to be examined is contingent upon the consent of that one for or against whom the witness may be offered. It does not follow that a married person is incompetent to attest a will because the husband or wife of such person is a beneficiary under the will. He can only become incompetent in a single contingency, and that is, in case such interested party shall become a contestant on the subsequent probate of the will. If the latter be not a contesting party, he is in no position to raise the objection, and he may not choose to do it if he is; and if he be one of the proponents, he thereby consents to the testimony of the attesting witnesses. The contingency which would make him incompetent may never arise, and if it does, it must be deemed to arise subsequent to the act of attestation.

In the case at bar, then, what evidence is there that the witness is incompetent? The wife is proponent, and offers to examine her husband as a witness. No question, therefore, in respect to his competency is raised. Incompetency in a witness is not presumed, and the question is to be determined when the offer to examine the witness is made, and then the facts are to be ascertained by the court. The witness is not shown to be incompetent in this case, and his evidence on the probate of the will was properly received. In Tillotson v. Prichard, 60 Vt. 107, 14 Atl. 302, 6 Am. St. Rep. 95, it is held that the wife of the grantor in a Minnesota deed was a competent attesting witness thereto, under the provisions of the statute we have been

considering, and the court say "that she was a competent witness, and might be examined with the consent of her husband," and also held, as we do, that the plaintiff, by offering the deed in evidence, consented to her being a witness.

2. The appellant also contends that if the husband be a competent witness, then the legacy to his wife should be held void under the statute which annuls beneficial devises, etc., to a subscribing witness on account of the marital relation. But there is nothing in this point. The husband has no direct or certain interest in the legacy to his wife. It is absolutely hers in her own right, and free from his control. Gen. St. c. 69; Wilson v. Wilson, supra. The only devises or legacies which the statute annuls are those made to subscribing witnesses, which clearly does not apply to the husband or wife of the legatee. In England, where husband and wife are competent witnesses (Tayl. Ev. pp. 1145, 1147), the statute has gone further (1 Vict. c. 26, § 15), and also avoids gifts, legacies, and devises to the husband or wife of an attesting witness. It could not be done without the statute. This legislation assumes both the competency of the witnesses and that they had no interest in the legacies which would have made the same void without the aid of legislation to that effect.

The construction we have adopted is in conformity with the spirit of modern legislation on the general subject of the rights of husband and wife, and the practical results will no doubt be no more serious than in the case of parents or children, who may unquestionably attest deeds and wills for each other. 1 Alb. Law J. 246.

It is a matter largely for the judgment of the Legislature. Judgment affirmed.55

55"We think that by these rules the wife was a disinterested witness. She had no present, certain, and vested interest in the legacy given to her husband. It was remote and contingent. It will be observed that this is not a devise of real estate. The will contemplates that whatever real estate there may be shall be sold to pay the legacies. Now the wife has no present, vested interest in such a legacy to the husband. It is his own, to dispose of at his pleasure, and there are many contingencies which may intervene to prevent the wife from ever acquiring any part of it. We think the wife was a competent and disinterested witness." Rothrock, J., in Hawkins v. Hawkins, 54 Iowa, 443, 446, 6 N. W. 699, 700 (1880).

In Lippincott v. Wikoff, 54 N. J. Eq. 107, 33 Atl. 305 (1895), it was held that, under a statute making the husband or wife of any party interested in a suit competent and compellable to give evidence on behalf of any party to the suit, a husband was a competent attesting witness to a will under which his wife took as devisee and legatee. For a case where the statutes leave the husband or wife of a beneficiary under a will incompetent to testify concerning matters connected with the execution of the will, and therefore incompetent attesting witnesses, see Belled in v. Gooley, 157 Ind. 49, 60 N. E. 706 (1901).