apply to wills of personalty, since such testaments did not require attestation.59 § 460. The Same Subject: Statute of 1 Victoria, Ch. 26. At common law a wife took a dower interest, and a husband an estate by curtesy, in real property acquired by the other during coverture. To that extent a husband or wife acquired a direct beneficial interest in a devise of real property in favor of the other. The rule in England was that an interest acquired by a husband or wife was not such a direct interest as would come under the statute of 25 George II, ch. 6, and therefore, such interest not being extinguished, a husband or wife was not a competent attesting witness if the will contained a devise or legacy in favor of the other.60 That rule has since been modified in England by the statute of 1 Victoria, ch. 26, which enacted that if any person shall attest the execution of any will to whom or to whose wife or husband any beneficial devise, legacy, estate, interest, gift, or appointment, of or affecting any real or personal estate (other than and except charges and directions for the payment of any debt or debts), shall be thereby given or made, such devise, legacy, estate, interest, gift, or appointment shall, so far only as concerns such person attesting the execution of such will, or the husband or wife of such person, or any person claiming under such person or the wife or husband, be utterly null and void, and such 25 Me. 493; Jackson v. Woods, 1 Johns. Cas. (N. Y.) 163; Jackson v. Durland, 2 Johns. Cas. (N. Y.) 314. 59 Brett v. Brett, 3 Addams Ecc. 210, 214; Emanuel v. Constable, 3 Russ. 436. Compare: Lees v. Summersgill, 17 Ves. Jun. 509. 60 Hatfield v. Thorp, 5 Barn, & A. 589; Windham v. Chetwynd, 1 Burr. 414. person shall be admitted as a witness to prove the execution of such will, or to prove the validity or invalidity thereof, notwithstanding such devise. § 461. The Same Subject: Rule in the United States. 61 The rule of the old common law as to the husband or wife of a beneficiary under a will not being competent as an attesting witness thereto, has been followed in some jurisdictions in the United States. Practically all the states have statutes rendering devises and bequests to subscribing witnesses void. Under such statutes, although not in terms included, it has been held that the unity of husband and wife is such in legal contemplation 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.62 Some jurisdictions have covered this particular matter by statute. In other states the supposed unity of husband and wife has been severed by legal enactment, or the common law rule abolished.** 61 Fisher v. Spence, 150 Ill. 253, 41 Am. St. Rep. 360, 37 N. E. 314; Chicago Title etc. Co. v. Brown, 183 Ill. 42, 47 L. R. A. 798, 55 N. E. 632; Rowlett v. Moore, 252 Ill. 436, Ann. Cas. 1912D, 346, 96 N. E. 835; Appeal of Clark, 114 Me. 105, Ann. Cas. 1917A, 837, 95 Atl. 517; Sullivan v. Sullivan, 106 Mass. 474, 475, 8 Am. Rep. 356; Rucker v. Lambdin, 12 Smedes & M. (20 Miss.) 230, 257; Hodgman v. Kittredge, 67 N. H. 254, 68 Am. St. Rep. 661, 32 Atl. 158; Giddings v. Turgeon, 58 Vt. 106, 4 Atl. 711. 62 Winslow v. Kimball, 25 Me. 493; Jackson v. Woods, 1 Johns. Cas. (N. Y.) 163; Jackson v. Durland, 2 Johns. Cas. (N. Y.) 314. 63 See synopsis of statutes, Appendix to this volume.-Connecticut, Genl. Laws, 1902, § 294; Massachusetts, Rev. Laws, ch. 135, § 5; South Carolina, Civ. Code, 1912, § 3567; Virginia, Pollard's Code, 1904, § 2529. 64 White v. Bower, 56 Colo. 575, Ann. Cas. 1917A, 835, 136 Pac. 1053; In re Hatfield's Will, 21 Colo. App. 443, 122 Pac. 63; Kaufman v. Murray, 182 Ind. 372, Ann. Cas. 1917A, 832, 105 N. E. 466; In re Holt's Will, 56 Minn. 33, 45 Am. St. Rep. 434, 22 L. R. A. 481, 57 But the paramour of a beneficiary is not for that reason rendered incompetent as an attesting witness.65 In one case a distinction has been made where the husband or wife takes an interest in personal property only; it being held that such an interest is remote and contingent. Thus the wife, whose husband was a legatee under a decedent's will which she had attested, was held a disinterested and competent witness, she having no present vested interest in the legacy to her husband and it being his own to dispose of at his pleasure.66 § 462. Number of Witnesses Required. A written will, other than a holographic will, must always be attested and subscribed by the minimum number of witnesses required by the statute, otherwise it is void. A will or codicil insufficiently attested is not aided by the testimony of other persons not subscribing witnesses, who happen to be present at the time.68 A codicil illegally executed because of an insufficient number of attesting witnesses can not be relied upon as a republication of a will so as to make it a part of the will."9 But the fact that the number of witnesses that attest N. W. 219; Gamble v. Butchee, 87 "A husband may be a witness to a will in which a legacy creating a separate estate is given to his wife."-Park's Annot. Civ. Code, Ga., 1914, § 3849. 65 In re Klinzner's Will, 71 Misc. Rep. 620, 130 N. Y. Supp. 1059. 66 Hawkins v. Hawkins, 54 Iowa 443, 6 N. W. 699. 67 Notes v. Doyle, 32 App. D. C. 413; Blackshire Co. v. Northrup, 176 Ala. 190, 42 L. R. A. (N. S.) 454, 57 So. 743; Pitts v. Darby, 182 Ala. 370, 62 So. 523; Brengle v. Tucker, 114 Md. 597, 80 Atl. 224; Morris v. Abney, 135 La. Ann. 302, 65 So. 315; Berst v. Moxom, 163 Mo. App. 123, 145 S. W. 857. 68 Notes v. Doyle, 32 App. D. C. 413. 69 St. John's Parish v. Bostwick, 8 App. D. C. 452. and subscribe to the will exceeds the number required by statute does not affect the validity of the instru- ' ment.70 This rule obtains even if some of the witnesses did not sign in the presence of the testator," or otherwise failed to comply with the statutory requirements,72 if a sufficient number of witnesses duly attested the will and subscribed their names thereto as witnesses. And although one or more witnesses may be interested and therefore incompetent, if the will be properly attested and subscribed by the required number of disinterested and competent witnesses, the legal requirements are fulfilled and the will is valid.78 In some states it is required by statute that the witnesses should sign the will in the presence of one another. Under such a statute, and where three witnesses were required, a will signed at one time by two witnesses only, can not have life imparted to it by a codicil subscribed by two witnesses, one of whom is different from the witnesses to the will itself." But in jurisdictions where the statute does not require all the witnesses to be present at the same time, evidence of intention that 70 Jones v. Brooks, 184 Ala. 115, 63 So. 978; Ducasse's Heirs v. Ducasse, 120 La. 731, 45 So. 565; In re Sizer's Will, 129 App. Div. 7, 113 N. Y. Supp. 210. "Our conclusion is that it would be an unsafe rule to hold that an undelivered deed, which by chance happened to be attested by two witnesses, could be converted into a will by parol testimony."-Noble v. Fickes, 230 Ill. 594, 12 Ann. Cas. 282, 13 L. R. A. (N. S.) 1203, 82 N. E. 950. 71 Jones v. Brooks, 184 Ala. 115, 63 So. 978. 72 Gore v. Legon, 105 Miss. 652, 63 So. 188. 73 Wisehart v. Applegate, 172 Ind. 313, 88 N. E. 501; In re Carson's Estate, 244 Pa. St. 401, 90 Atl. 719. 74 Dunlap v. Dunlap, 4 Desaus. Eq. (S. C.) 305. Compare: Lea v. Libb, Carth. 35; s. c., 3 Salk. 395. the attestation of the codicil should apply to the will also is admissible and, if such an intention were established, the number of the witnesses might thus be completed.75 § 463. Holographic Wills: When Witnesses Not Required. In some jurisdictions, holographic wills are not required to be attested and subscribed by witnesses. A holographic will is one written by the testator by his own hand. The statutes regarding such wills vary greatly and should be consulted in all cases. For instance, in California and Louisiana such a will must be entirely written, dated and signed by the hand of the testator, but no witnesses are required.76 In North Carolina" and in Ten 75 Bond v. Seawell, 3 Burr. 1775. 76 Cal. Civ. Code, § 1277; Louisi ana, Civ. Code (Merrick, 1913), art. 1588. The fact that the word "witness" followed underneath the signature of a testator to his holographic will, did not invalidate the instrument.-Estate of Soher, 78 Cal. 477, 21 Pac. 8. Compare: Powers v. Davis, 3 MacArthur (D. C.) 153, 162. 77 North Carolina, Pell's Revisal, 1908, § 3113; Little v. Lockman, 49 N. C. 494; Sawyer's Legatees v. Sawyer's Heirs, 52 N. C. 134; Hughes v. Smith, 64 N. C. 493; Alston v. Davis, 118 N. C. 202, 24 S. E. 15. A statute requiring that the holographic will be found "among the valuable papers of the testator" is sufficiently satisfied where the will is found in a locked safe, even though there were no other paper in the drawer of the safe in which the will was found.-Harper v. Harper, 148 N. C. 453, 62 S. E. 553. Where the law requires that the holographic will be found among the valuable papers and effects of the deceased, it is held that insurance policies are effects within the meaning of the statute.-In re Jenkin's Will, 157 N. C. 429, 37 L. R. A. (N. S.) 842, 72 S. E. 1072. The purpose of the statute requiring a holographic will to be found after death among the valuable papers of the deceased, or deposited with some person for safekeeping, is to furnish evidence that the deceased attached importance to the paper as a testamentary disposition and to lessen the opportunity for fraud or imposition. - Emsweller v. Wallace (W. Va.), 88 S. E. 786. |