32 A. 158 | N.H. | 1892
A will must be "attested and subscribed . . . by three or more credible witnesses," — that is to say, by witnesses competent at the time the will is executed to testify in a court of justice to its execution. G. L., c. 193, s. 6; Carlton v. Carlton,
Hodgman was not rendered an incompetent attesting witness by his nomination and appointment as executor of the will (Stewart v. Harriman,
The intention of the legislature to make void a devise or legacy to an attesting witness in order that the will may not entirely fail is clearly expressed. There is no evidence upon which it can be found that the legislature intended to make competent a witness incompetent at common law for any reason other than his pecuniary interest in the maintenance of the will, or that a witness who *257 takes nothing under a will should be regarded as a devisee or legatee. The appeal is sustained, and the
Decree of the probate court reversed.
CHASE, J., did not sit: the others concurred.