Hawkins v. Hawkins

| Iowa | Oct 5, 1880

Rotheook, J".

i. mix.: subscribing witness: bus-band and wile. "W. H. Hawkins was directly interested in the will as a legatee, and being a subscribing witness thereto he could derive no benefit therefrom, unless there . . were two other competent and disinterested wit-x nesses. Section 2327 of the Code provides that, “ no subscribing witness to any will can derive any benefit therefrom unless there be two disinterested and competent witnesses to the same.”

The only question to be determined then is, was T. C. Hawkins, the wife of "W. H. Hawkins, a disinterested and competent witness? That she was a competent witness in the general sense cannot be disputed. By section 3636 of the Code it is provided that “every human being of sufficient capacity to understand the obligation of an oath is a compe.tent witness in all cases, both civil and criminal, except as herein otherwise declared.” A married woman, then, is a competent subscribing witness to a will. She is not within any of the exceptions contained in the Code. If it be said that she is not competent to establish that part of the will which makes her husband a legatee, the answer is, by section 3641, the husband or wife are, in all civil and criminal cases, competent witnesses for each other.

Is the wife a disinterested witness? No person offered as a witness is incompetent by reason of his interest in the event of the action or proceeding, except in certain cases. Code, § 3638. This section is qualified by séction 2327, which requires that a legatee or devisee, who is a subscribing witness to a will, can derive no benefit therefrom unless there be two disinterested and competent subscribing witnesses. Our statute nowhere defines the interest which disqualifies a witness. See the general statute upon the subject. No such definition was necessary, because, as we have seen, interest does not, in general, disqualify. We are, then, to inquire whether, under the common law, modified by our statute making the wife a competent witness, has she such an interest in the legacy given by the will to her husband as to exclude her as a witness? In 1 Greenleaf on Evidence, Sec. 386, it is said: “This disqualifying interest, however, must be some legal, certain, and immediate interest, however minute, either in the event of the cause itself or in the record as an instrument of evidence in support of his own claims in a subsequent action. It must be a legal interest, as distinguished from the prejudice or bias resulting from friendship or hatred, or consanguinity, or any other domestic or social, or any official relation,- or any other motives by which men are generally influenced; for these go only to the credibility * * *.”

Again,"in section 390, it is said: “The true test of the interest is, that he will either gain or lose by the direct legal operation and effect of the judgment * * * . It must be a present, certain and vested interest, and not an interest uncertain, remote or contingent.” See, also, Cutter v. Fanning, 2 Iowa, 580" court="Iowa" date_filed="1856-06-15" href="https://app.midpage.ai/document/cutter-v-fanning-7091101?utm_source=webapp" opinion_id="7091101">2 Iowa, 580.

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 contin- . gent. 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, and that the court erred in excluding her testimony as applicable to the legacy of her husband.

Reversed.