108 Va. 670 | Va. | 1908
delivered the opinion of the court.
L. H. Bruce offered for probate in the Circuit Court of Rockingham county a paper writing purporting to be the last will of Virginia Dutrow, deceased, of date April 12, 1908. Under the will Bruce was the chief beneficiary. Its probate was opposed by Sarah Shuler, the sole heir at law and distributee of the decedent.
Bruce, who offered the will for probate, was one of the two subscribing witnesses thereto, the other subscribing witness being alive and available for examination as a witness.
The circuit court refused to admit the will to probate, being of opinion that the competency of Bruce as an attesting witness was to be determined as of the date of his attestation; and that, being a beneficiary under the will and one of the two attesting witnesses required by law to the validity of the will, he came under the influence of section 2529 of the Code, which provides: “If a will be attested by a person to whom * * * any beneficial interest in any estate is thereby devised or bequeathed, if the will may not be otherwise proved, such person shall he deemed a competent witness, but such devise or bequest shall be void, * * * ” Thn circuit court was of opinion that the competency of Bruce as an attesting witness was to be determined as of the date of his attestation; that the will could not he otherwise proved; that under the statute the devise or bequest to him in the will became void; and that, as a consequence, he had no interest in the probate of the will. His motion to probate the will was, therefore, dismissed. To that judgment a writ of error was awarded by this court.
Our statute (Code, sec. 2514) provides that “Ho will shall be valid unless it be in writing and signed by the testator, or by some other person in his presence and by his direction, in such manner as to make it manifest that the name is intended as a signature; and moreover, unless it he wholly written by the testator, the signature shall be made or the will acknowl
Under our statute, a will must be proved by two “competent” witnesses. The statute of 29 Car. II, ch. 3, sec. 5, used the word “credible,” which was also employed in our statute down to 1850. It was universally agreed, however, that “credible” meant no more and no less than “competent.” There was. a serious diversity of opinion, however, as to the period to which the statute designed to refer the competency of the witness. Lord Camden was of opinion that it was when he attested the will (Hindon v. Kersey, 1765), 1 Bro. Adm’y & Civ. L. 284, n. (24); 4 Burn’s Ecc. Law. 88; Bac. Abr. Wills (D), (III); or to the period when he was called to prove it, as Lord Mansfield held (Windham v. Chetwynd, 1 Burr. 414; Lowe v. Joliffe, 1 W. Bl. 366; Goodtitle v. Welford, 1 Dougl. 141). This doubt our statute does not resolve. It is extremely probable that with us Lord Camden’s opinion would prevail. It seems that it does in England. Holdfast v. Dowsing, 2 Stra. 1254-5; Hatfield v. Thorp, 5 B. & Ald. (7 E. C. L.) 589; 1 Jarm. Wills (5th ed., 70), 2 Min. Inst. (3rd ed.), 1024.
In Hawes v. Humphrey, 9 Pick. (Mass.) 350, 20 Am. Dec. 481, the court, referring to the conflict between the great judges above mentioned, said: “Both opinions are respectively supported by other decisions, and it may be difficult perhaps to determine on which side the weight of authority preponderates. But it appears to me that the opinion of Lord Camden is sustained by the more convincing and consistent reasoning, and is more conformable to the language and apparent intention of the statute.”
In Schuler on Wills (3rd ed.), sec. 353, it is said: “The disqualification of interest is that which courts have chiefly to consider where the competency of a subscribing witness is drawn in question. One who has an immediate beneficial in
It is proper to observe that our statute, which has made so many and such radical changes with respect to the competency of witnesses, does not affect the competency of attesting witnesses to wills, deeds, and other instruments. Code, sec. 3346.
To hold that the tests as to competency should be applied at the time when the will was presented for probate, and not at the date of its execution would defeat one of the most important and salutary purposes contemplated by the statute which requires that wills shall be attested by two competent witnesses.
“The object of the statute was to prevent frauds as well as perjuries. Wills are frequently made by a testator in extremis, or when he is greatly debilitated by age or infirmity, when frauds may be practiced 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 was about to execute his will. They are to be disinterested and credible also, at the time of 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.
“There is another important reason for referring the credibility of the witnesses to the time of attestation rather than to the time of the probate of the will; for if the statute is to be understood as referring to the latter period, it would follow that a will attested by unexceptionable witnesses, could not be proved, if the witnesses, after the attestation and before the probate, should become insane, infamous, or otherwise disqualified,
Croft v. Croft, 4 Gratt. 103, is relied upon by plaintiff in error to sustain his contention. In that case Samuel Croft was one of two subscribing witnesses to the will of Lewis Croft, and was one of the devisees of a certain tract of land. The circuit court was of opinion that the statute concerning wills (1 Rev. Code, ch. 104, sec. 11, p. 377), which provides, that “if any person shall subscribe his or her name as a witness to a will, wherein any bequest is given to him or her, if the will may not be otherwise proved, the bequest shall be void, and such witness shall be allowed and compellable to appear, and give testimony on the residue of the will, in like manner as if no such bequest had been made,” governs the case of a devise or bequest, whether of real or personal estate, to an attesting witness to a will. The contention of appellants was that a bequest applied only to personal estate, and that the statute therefore did not apply to a devise of lands; but the court of appeals affirmed the judgment, upon the ground that the statute applied as well to devises of real estate as to bequests of personalty; that it rendered the provision in favor of Samuel Croft null and void, and he became a competent witness to establish the will as though no such devise had been made to him.
In the case of Davis v. Davis, 43 W. Va. 300, 27 S. E. 323, decided by the Supreme Court of West Virginia, the contention of plaintiff in error is sustained. In that ease the will of Charles W. Davis was attested by Mrs. Delilah Davis, to whom and whose husband devises and bequests were made. The other subscribing witness (two being required) took nothing under the will. The will was probated upon the testimony of the disinterested witness; and a bill to declare void the bequests
We cannot concur in this reasoning. The will must be attested by two competent witnesses. They must be competent at the time of the attestation. • Those who take under the will are not competent, were not competent at common law', and their incompetency is not relieved by statute. It is true that while a will must be attested by two competent witnesses, its due execution can be proved by the testimony of one witness ; but that witness must prove all the facts required by the statute to be proved as necessary to the due execution of a will, and among them that it was attested by two competent witnesses. The will in his case was attested by Sally Williams, who subscribed to it by making her mark in place of a signature, and by L. H. Bruce, the principal beneficiary under the will. Mr. Bruce stands aside and puts forward Sally Williams as a witness to prove all that the statute makes necessary to the probate of the will. It became necessary for her to prove that it was signed by the testator, or acknowledged by him, in the presence of herself and of Bruce, who were present at the same time, and that they subscribed the will in the presence of the testator. But that is not all. She should have been required to prove that both she and Bruce were competent witnesses. How the instant that it was made to appear that L. II. Bruce,. who had subscribed the will as one of the attesting witnesses, whose attestation was essential to the validity of the will, was the same Bruce who was named as a beneficiary under the will, he could only be considered as an attesting witness by virtue of section 2529, which renders the devise or bequest to him void. This will could not be otherwise proved than by proof of his attestation, whether that proof came from his own lips or from other witnesses.
In our judgment, the true view of the statute is, that the words, “if the will may not be otherwise proved,” have reference to a case where the devisee or legatee is needed as an attest
We are of opinion that there is no error in the judgment of the circuit court, which.is affirmed. ■ ■
Affirmed.