Fortune v. Buck, 23 Conn. 1

Fortune v. Buck

23 Conn. 1 | Conn. | 1854

Lead Opinion

Church, C. J.

The plaintiff- is one of the heirs at law of Martha Bulkley, and claims that the premises in question descended to him, and other heirs of the deceased, among whom the defendant is one, as intestate estate, and he prefers his bill in equity, for a partition of the same among such heirs.

The defendant is in possession of the property in question, and claims exclusive title to it, as a devisee, under the will of the said Martha Bulkley. And the question is, did the premises in dispute pass to the defendant, under the will of the said Martha, or are they to be treated as intestate ?

It is found by the superior court, that the said Martha Bulkley died, seized, and that she made and published, in her life-time, an instrument, purporting to be her last will and testament, by which the land in controversy was devised to the defendant, in fee.

This instrument was duly presented to the court of probate, for the district of Hartford, for probate, on the nineteenth day of March, A. D. 1847, and was duly proved and approved, as the last will of the deceased. From this decree, the plaintiff and others, heirs at law of the deceased, appealed *6to the superior court, and, among the reasons assigned for the appeal, it was alleged, that the will was not subscribed by the testatrix, in the presence of three witnesses. The said Martha died on the sixteenth day of October, 1845.

The superior court found the reason thus assigned, and the other reasons for the appeal, untrue, affirmed the decree of the court of probate, and further decreed, that said instrument be established as a valid will. 1

It would seem, from this review of the proceedings, that the defendant had conclusively established his defence, and had proved a sole and exclusive title, in himself, to the disputed property.

But, in answer to this, the plaintiff claims, that, by the terms of the third section of the statute of 1838, (title Estates, chapter first,) in force when this will was executed, and when this testatrix died, although the will was well and legally executed, yet the defendant could take nothing by it,—that it was void as to him, because, as has been found by the superior court, his wife was one of the only three subscribing or attesting witnesses to the will.

The statute referred to enacts, that, if any beneficial devise, legacy or interest hath been or shall be made or given in any will or codicil, executed after the first day of January, 1808, to any person subscribing such will or codicil as a witness to the execution thereof, such devise, legacy or interest shall, as to such subscribing witness, and all persons claiming under him, be null and void, unless such will or codicil be otherwise duly witnessed, according to this act, and such person shall be admitted as a witness to such will or codicil, in the same manner'as if such devise, legacy or interest had not been given. Provided, such devise, legacy or interest be not made to an heir at law of the testator, &c. This statute, it will be noticed, by its terms, makes no provision for a. case where the wife of a devisee, &c., is a subscribing witness, as is done by the law now in force.

Upon what ground the court of probate and the superior *7court proceeded, in declaring this will to have been well executed, and that it was subscribed by the testatrix, in the presence of three witnesses, we do not know. It may be, that the fact, now found to be true, that Eunice Buck, the subscribing witness, was the wife of the defendant, was not brought to their notice; or, it may be, that they placed the case upon the same ground, as if the defendant himself had been the attesting witness, as the statute now in force does, and, therefore, considered the wife as a competent witness, on the supposition that the devise to her husband was void.

If the decision of this case required it, it would, in our judgment, present to ns a serious question, whether this will fell under the operation of the statute before recited, and whether the same legal consequences would follow, as if the defendant himself, the devisee, had been the attesting witness, instead of his wife?' Is the wife of a devisee to be taken as the devisee ?

That the wife was an interested subscribing witness, and incompetent to sustain the will, in favor of her husband, if objected to, while the probate of the will was under consideration, we can well see; but how a person, whether wife or not, can be treated as a devisee, to whom nothing is devised, where no statute so provides, is not so easily perceived, and especially in this state, where a wife has no present interest, no inchoate right of dower in the real estate of a living husband. 1 Jarman on Wills, 67.

However all this may be, we choose to consider this case, as if Buck, instead of his wife, had been the attesting witness. If he had been a stranger to the testatrix, in such case, instead of one of her heirs at law, the will would have been well executed, because of his incapacity to take under it, and of course, having no interest to sustain it. But the superior court has found that he was an heir at law of the testatrix.

We suppose this case comes before us in an aspect very different from that in which it would appear, if we were *8acting upon the question, whether the will was well executed ; or if it were now before us, for probate. In such case, we could not fail to see, that the defendant Buck, being a devisee, was so interested, that the will would be void, for want of the necessary number of competent witnesses. But, at this time, and after the will has been fully proved and established, by the only competent tribunals which can decide upon its validity, we can have nothing to do with the question, how far the defendant was an interested or an incompetent witness to the will. We are acting under ah established will, and the question before us, as a majority of us believe, is, whether this defendant, under the facts before us, can take the portion devised to him by the will. If he was not an heir at law of the testatrix, he could not take, as the clear enactment of the recited section of the statute declares, in general terms, that a devise, legacy or interest, given to a subscribing witness to the will, shall be null and void.

The defendant would be embraced by this enactment, were it not for the proviso of the same section, which, with equal clearness of language, excepts, from the operation of this law of forfeiture, all devises, &e., made to an heir at law of the testator.

We do not feel at liberty to indulge in any fancied construction of this law. The obvious meaning of the language leads to the conclusion, that the proviso qualifies the entire enactment, and in effect declares, that although, in all other cases, where a devisee shall be a subscribing witness, the devise shall be void, and the devisee shall be incapable of taking under the will, yet this shall not extend to an heir at law of the testator, standing in the same position. At least, if this is not the meaning of the language used, we know not what it is.

Nor can the legislation of other states on the same subject, to which we have been referred, aid us in the construction of this, or any other law of our own: we, as a court, can *9only know the meaning of a law, by the language of the law, and the subject matter of it, connected with our own legislation, or common law, upon the same subject.

Aside from the natural import of the language, used in the statute under consideration, which we have regarded as imperative upon us, in its construction, we might suggest plausible reasons, leading to the same result, drawn from the probable intention of the legislature.

We are led to the result, therefore, from the views we have taken of the facts and the law of this case, that the defendant, being an heir at law of the testator, is not, by statute, disqualified from taking under this will, and as the will has been legally established, it has vested in the defendant a title to the land in controversy, as testate estate. And, therefore, a majority of the court unites in advising the superior court, that, upon the facts, the premises are testate estate, and that the plaintiff's bill ought to be dismissed.

In this opinion, Waite and Ellsworth, J’s, concurred.

Dissenting Opinion

Storrs, and Hinman, J’s,

dissented. They were of opinion, 1. That, by the just construction of the third section of our statute of wills, as it existed at the time of the making of the will of Martha Bulkley, the “ heir at law of the testator,” mentioned in the proviso therein, meant only such an heir as would have inherited what was devised or bequeathed to him by the will, and to whom, therefore, it was indifferent, whether he took it by the devise, or by inheritance. 2. That a devise or bequest to the husband or wife of a witness to a will, is equally void, as if it were made to the witness. Clark v. Hoskins, 6 Conn. R., 106. Jackson v. Woods, 1 Johns. Cas., 163. Jackson v. Durland, 2 Johns. Cas., 314. Winslow v. Kimball, 25 Maine R., 493. 3. That the plaintiff is not precluded in this ease, by the probate of the will, from denying the validity of the devise to him, of the land sought to be aparted, (in which Church, *10C. J., concurred,) and that, therefore, evidence, to prove that one of the witnesses to the will was his wife, was admissible. Hardfell v. Witherill, 18 Jurist, 233.* Gingell v. Horne, 9 Sim., 339. Segrave v. Kinvan, 1 Beat., 157. Wilford v. Bulkley, 2 Cl. & Fin., 102. 8 Bligh, N. S., 111. 3 Miller’s Lou. R., 170, 175. 4. That, as such devise gave to the plaintiff the whole of said land, and, as heir of the testator, he would inherit a less proportion of it, the devise was rendered void by such third section of the statute, and the land thereby given is intestate, and that'the plaintiff is therefore entitled to have it aparted between himself and the defendants, the other heirs of the testator.

Bill dismissed.

23 Little & Brown’s Law & Eq. Hep., 132.