but this presumption is slight, and may be repelled by slight evidence. that the testator was prevented from finishing *the instrument by the act of God, or that he intended it to operate in its present form. (f) In the case of Buckle v. Buckle, (g) the fact of the testamentary paper being found sealed up at the death of the testator, with an appearance that he did not intend to open it again, was held sufficient to rebut the presumption, by showing that it was his intention it should operate in its present form. So a recognition of it as a will by the testator will suffice. (h.) stock in the public funds. By the different acts of parliament creating stock in the public Devise of funds and annuities attending thereon, it is provided that any person possessed of the stock may devise the same by writing, attested by two witnesses. But the result of several cases on these acts, which it will hereafter be necessary to notice, is, that a bequest of stock, whether attested by two witnesses or not (if made before January 1st, 1838), is effectual to pass the subject bequeathed to the legatee. (i) 2. As to wills, &c. made on or after Secondly, As to the attestation of wills and codicils made on or after the 1st of January, 1838. The stat. 1 Vict. c. 26, s. 9, enacts, that no will (or testament or codicil, or any other testamentary instrument) shall be valid unless the signature shall be "made or acknowledged by the testator in the presence of two or more witnesses (1) present at the Jan. 1, 1838: the word "witnesses," which the court considered as raising an infinitely slighter presumption. (ƒ) Harris v. Bedford, 2 Phillim. 178; Beaty v. Beaty, 1 Add. 158; In the Goods of Hurrill, 1 Hagg. 252; In the Goods of Wenlock, 1 Hagg. 551; In the Goods of Thomas, 1 Hagg. 596; In the Goods of Edmonds, 1 Hagg. 698; Bragge v. Dyer, 3 Hagg. 207; Pett v. Hake, 3 Curt. 612. (g) 3 Phillim. 323. (h) In the Goods of Jerram, 1 Hagg. 550. See, also, In the Goods of Vanhagen, 1 Hagg. 478; In the Goods of Sparrow, Ib. 479, where there was an attestation clause in the plural number, and only one witness. (i) Ripley v. Waterworth, 7 Ves. 440; Franklin v. Bank of England, 1 Russ. 589; post, pt. 11. bk. III. ch. 1. (21) [As to the number of witnesses in the American States, see ante, 67, note (¿1). "It seems to have been generally considered" as observed in Jarman Wills (3 Eng. ed. pp. 104-106), "that this provision not only qualifies persons who have been rendered infamous by conviction for crime to be attesting witnesses (as it clearly does), but, that it even gives validity to the attesting act of an idiot or lunatic. This, however, seems very questionable. The signature, it will be observed, is required to be made or acknowledged by the testator in the presence of the witnesses; which would seem to imply that they should be mentally conscious of the transaction, according to the construction which was given to the same word occurring in the devise clause of the statute of frauds, which required that the attesting witnesses same time, and such witnesses shall attest (2) and shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary." * The statute of frauds required, with respect to a will of lands, that it should be "attested and subscribed in the presence of the devisor, by three or four credible witnesses." (3) should subscribe in the testator's 'presence;' such requisition being held not to be satisfied in a case in which the testator fell into a state of insensibility, before the witnesses had subscribed their names to the memorandum of attestation." "Perhaps the point is not very likely to occur in practice; for no testator would think of choosing an idiot or lunatic as an attesting witness to his will, unless he were content to have his own sanity called in question. And here it may be observed, that the enlarged license now given, in regard to the qualification of witnesses to wills, will not induce any prudent person to abate one jot of scrupulous anxiety, that the duty of attesting a will be confided to persons whose character, intelligence, and station in society, afford the strongest presumption in favor of the fairness and proper management of the transaction, and preclude all apprehension in purchasers and others, as to the facility with which the instrument could be supported in a court of justice, against any attempt to impeach it; and now that the requisite number of witnesses is reduced to two, it is the more easy, as well as important, that the selection should be governed by a regard to such considerations. A devise or bequest to an attesting witness still, as under the old law, does not affect the validity of the entire will, but merely invalidates the gift to the witness, whose competency the legislature has established, by destroying his interest."] (2) [As to the meaning involved in the word "attestation," see Swift v. Wiley, 1 B. Mon. 117; Griffith v. Griffith, 5 B. Mon. 511; Gerrish v. Nason, 22 Maine, 438; Sweet v. Boardman, 1 Mass. 258; Neil v. Neil, 1 Leigh, 6. In Missouri, the attesting witnesses are required by statute to attest, not only the formal execution of the will, but the sanity of the testator as well. Withington v. Withington, 7 Missou. 598. It does not, however, seem to be required that this should be stated in the attestation clause. Murphy v. Murphy, 24 Missou. 526. For the requirement as to attestation of sanity in Illinois, see Stat. Ill. p. 336, § 2. See, also, Heyward v. Hazard, 1 Bay, 335; 1 Greenl. Ev. § 292; 2 Greenl. Ev. § 691; Butler v. Benson, 1 Barb. 526; Nelson v. McGiffert, 3 Barb. Ch. 158; Lewis v. Lewis, 13 Barb. 17; Torry v. Bowen, 15 Barb. 304; Keeney v. Whitmarsh, 16 Barb. 141. In regard to the purpose and office of witnesses to wills, Rucker v. Lambdin, 20 Miss. 230.] (23) [As to the number of witnesses required in the American States, see ante, 67, note (b1). The statute of Massachusetts, extending and establishing the competency of witnesses to testify in civil and criminal proceedings, expressly excludes the application of it to the attesting witnesses to a will or codicil. St. 1870, c. 393, § 2. So in Maine. Rev. St. c. 82, § 80; McKeen v. Frost, 46 Maine, 248. In regard to the attestation of wills in Massachusetts, the statute (Genl. Sts. c. 92, § 6) provides that the witnesses shall be competent at the time of attestation, but their subsequent incompetency, from whatever cause it may arise, shall not prevent the probate and allowance of the will, if it is otherwise satisfactorily proved. See, to same effect, in New Hampshire, Rev. St. N. H. c. 157, § 12; Frink v. Pond, 46 N. H. 125. In Hawes v. Humphrey, 9 Pick. 356, 357, Wilde J. said: "The object of the statute was to prevent frauds as well as perjuries. they shall attest and subscribe the will in testator's presence: It will be observed, that besides the change from three to two in the number of witnesses, there are several important differences between the exigencies of the two statutes. Wills are frequently made by a testator in extremis, or when he is greatly debilitated by age or infirmity, when frauds may be practised upon him with facility by the crafty and designing; and it was the intention of the statute to guard against such practices, and to protect the testator by surrounding him with disinterested witnesses at the critical and important moment when he is about to execute his will. They are to be disinterested and credible also, at the time of the attestation, because in some sense they are made the judges of the testator's sanity. It is their duty to inquire into this matter, and if they think the testator not capable, they should remonstrate and refuse their attestation." But see the remarks of Sargent J. upon this point, in Boardman v. Woodman, 47 N. H. 120, 134. See, also, Carlton v. Carlton, 40 N. H. 14. In Sullivan v. Sullivan, 106 Mass. 474, 475 (1871), Gray J. said: “By the law of this commonwealth, a will must be at tested by three competent witnesses, that is to say, witnesses who at the time of attestation would be competent by the rules of the common law to testify concerning the subject-matter," and in this case it was held that a wife is not a competent attesting witness to a will which contains a devise to her husband, notwithstanding the provision of Genl. Sts. c. 92, § 10, that "all beneficial devises, legacies, and gifts, made or given in any will to a subscribing witness thereto, shall be wholly void, unless there are three other competent witnesses to the devise." See Fortune v. Buck, 23 Conn. 1. But see contra as to the effect of the section last above quoted, Winslow v. Kimball, 25 Maine, 493; Jackson v. Woods, 1 John. Cas. 163; Jackson v. Durland, 2 John. Cas. 314. In Sparhawk v. Sparhawk, 10 Allen, 155, it was held that an heir-at-law, who is disinherited, is a competent attesting witness in support of the will. The question of the competency of attesting witnesses to wills is fully discussed in this case by Bigelow C. J., who said in conclusion: "If, by the terms of the will, its admission to probate would operate favorably to the interests of the witness, 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." See, as to competency of attesting witnesses, and what is meant by "credible witnesses," Higgins v. Carlton, 28 Md. 117; 2 Greenl. Ev. § 691; Shaffer v. Corbett, 3 Har. & M'H. 513; Carlton v. Carlton, 40 N. H. 14; Rucker v. Lambdin, 12 Sm. & M. 230; Gill's Will, 2 Dana, 447; Taylor v. Taylor, 1 Rich. (S. Car.) 531 ; Workman v. Dominick, 3 Strobh. 589; Hall v. Hall, 18 Geo. 40; Eustis v. Parker, 1 N. H. 273; Sears v. Dillingham, 12 Mass. 258; Amory v. Fellows, 5 Mass. 219; Hawes v. Humphrey, 9 Pick. 350; Warren v. Baxter, 48 Maine, 193; Allison v. Allison, 4 Hawks, 141; Sparhawk v. Sparhawk, 10 Allen, 156; Haven v. Hilliard, 23 Pick. 10, 17. A minor son of a legatee who is also named as executor, may be a witness to the will. Jones v. Tebbetts, 57 Maine, 572. See Harper v. Harper, 1 N. Y. Sup. Ct. 351, 359, 360. But it has been held in New Hampshire, that a person under the age of fourteen years is presumed to be incompetent, from defect of understanding, to attest the execution of a will, but this presumption may be rebutted; the witness is not required to have any other qualifications than those of ordinary testifying witnesses. Carlton v. Carlton, 40 N. H. 14. Mr. Justice Doe in this case said: "In proceedings in the probate court, whether the attesting witnesses of a will are then competent to testify, is a preliminary question concerning the admis sufficient edgment of the testor's signawitnesses: It was fur ture to the The statute of frauds merely requires that the witnesses shall attest and subscribe the will; and it was held in the con- what is a struction of this enactment, that it was unnecessary for acknowlthe testator actually to sign his will in the presence of the three witnesses who subscribed the same; but that any acknowledgment before them, that it was his will, made their attestation and subscription complete. (k) ther held, that it was sufficient if the testator acknowledged in fact, though not in words, to the witnesses that the instrument was his will, even though such acknowledgment conveyed no intimation whatever, or means of knowledge, either of the nature of the instrument or the object of signing; and, consequently, that if the witnesses subscribed their names as witnesses, at the testator's request, without seeing his signature, or being informed of the nature of the instrument, the statute was satisfied. (1) But the new .... sion of evidence, to be determined before they are sworn; but whether they were competent attesting witnesses at the time of attestation, is a question concerning the due execution of the will, to be decided after they are sworn. . . . . If the will were to be proved before a court and jury, the qualifications at the time of the trial, of the persons offered to testify, would be passed upon by the court, and the qualifications, at the time of the execution of the will, of the persons who attested and subscribed it in the testator's presence, would be passed upon by the jury." 40 N. H. 20. "Those witnesses are credible, whom the law will trust to testify to a jury, who may afterwards ascertain the degree of credit they have." Parsons C. J. in Amory v. Fellowes, 5 Mass. 228, 229; Parker C. J. in Sears v. Dillingham, 12 Mass. 361; Carlton v. Carlton, 40 N. H. 14. But a wife is not a competent witness to her husband's will; Pease v. Allis, 110 Mass. 157; nor is a husband to his wife's will. Dickinson v. Dickinson, 61 Penn. St. 401. As to the competency of executors, see Wyman v. Symmes, 10 Allen, 153; Richardson v. Richardson, 35 Vt. 238; Gunter v. Gunter, 3 Jones, 441; Sears v. Dillingham, 12 Mass. 358; Dorsey v. Warfield, 7 Md. 65; Pruyn v. Brinkerhoff, 7 Abb. Pr. N. S. 400; Burnett v. Silliman, 13 N. Y. (k) Ellis v. Smith, 1 Ves. jun. 11; Casement v. Fulton, 5 Moore P. C. 138, by Lord Brougham; [Holloway v. Galloway, 51 Ill. 159; Merchant's Will, 1 Tuck. (N. Y. Sur.) 151; Dewey v. Dewey, 1 Met. 349; Ela v. Edwards, 16 Gray, 91; Roberts v. Welch, 46 Vt. 164; Adams v. Field 21 Vt. 256; Rush v. Parnel, 2 Harring. 448; Welch v. Welch, 2 Monroe, 83; Dudleys v. Dudleys, 3 Leigh, 436; Beane v. Yerby, 12 Grattan, 239; Smith v. Jones, 6 Rand. 33.] (1) White v. Trustees of the British Museum, 6 Bing. 310; S. C. 3 M. & P. statute requires further, that the signature of the testator "shall be made or acknowledged (1) by the testator" in the presence of the two attesting witnesses. Soon after the act came into operation, a doubt appears to have been suggested, (m) whether an 689; Wright v. Wright, 7 Bing. 457; S. C. 5 M. & P. 316; Johnson v. Johnson, 1 Cr. & M. 140; S. C. 3 Tyrw. 73; [Dewey J. in Nickerson v. Buck, 11 Cush. 342; Ray v. Walton, 2 A. K. Marsh. 71; Jauncey v. Thorne, 2 Barb. Ch. 40; Huff v. Huff, 41 Geo. 696; Dickie v. Carter, 42 Ill. 376. It is not necessary that the witnesses should see the testator's signature on the paper, or know from him or any other source that the instrument which they attest is his will. Dewey v. Dewey, 1 Met. 349; Hogan v. Grosvenor, 10 Met. 56; Ela v. Edwards, 16 Gray, 92; Tilden v. Tilden, 13 Gray, 110, 114; Turner v. Cook, 36 Ind. 129; Brown v. McAllister, 34 Ind. 375. See Adams v. Norris, 23 How. (U. S.) 353; Tevis v. Pitcher, 10 Cal. 465; Jauncey v. Thorne, 2 Barb. Ch. 40; Leverett v. Carlisle, 19 Ala. 80; Dickie v. Carter, 42 Ill. 376. In Osborn v. Cook, 11 Cush. 532, no one of the witnesses knew that it was a will they were attesting. The will was in the testator's handwriting, and was sustained. In Hogan v. Grosvenor, 10 Met. 56, the will was in the handwriting of the testator. The testator took the paper from his desk, asked the witness to sign it, and pointed out the place where he wished him to put his name. The witness did so, not knowing what the paper was, and not noticing the signature of the testator on the paper. This was held a good attestation of the will. In Ela v. Edwards, 16 Gray, 91, proof was offered of the execution of a will in the handwriting of the testatrix and signed by her, to which three other persons had signed their names in the usual place for the signatures of witnesses, but without any attestation clause. The person whose name came first, testified: "She passed me a package of papers; asked me to sign my name as a witness; told me where to sign on the left side." The per said she wanted me to witness a document; that she had been making a little disposition of her effects, and would like to have me sign it as a witness. She put her finger to the line where she wished me to sign." It appeared that the other person who signed as a witness was out of the jurisdiction of the court, but it was proved that the signature was genuine. It was held that this was sufficient proof, in the absence of any evidence or allegation of fraud, of a due execution of the will. Dewey J. said: "The fact that she was thus obtaining the attestation of witnesses, and the directions which she gave as to signing their names, furnish strong presumptive proof that she had signed it." See Dewey v. Dewey, 1 Met. 354. But when a will was attested by the three subscribing witnesses at different times, and one of them, though he signed in the presence of the testatrix, neither saw her sign nor heard her acknowledge her signature, it was held that the will was not proved. Tucker v. Oxner, 12 Rich. Law (S. Car.), 141. In Vermont it is held to be necessary that the witnesses to the will know the character of the act which they are called upon to perform, and that by affixing their names to the instrument they are thereby attesting the execution thereof by the testator. They must subscribe their names animo testandi, and in the presence of each other. Roberts v. Welch, 46 Vt. 164.] |