10 Del. Ch. 503 | Orphan's Court of Delaware | 1914
Alfred D. Lecarpentier died March 1, 1914; leaving a will dated July 10, 1912, the two attesting witnesses, to which were Francis M. Walker, Esqi, and George A. Elliott, Esq. Mr. Walker was at the time of' the execution of the will, and at the death of the testator arid still is, Register of Wills for New Castle County. Being disqualified to probate the will a petition' was presented to' thé' Orphans’ Court by those named in the will as executors, s'ettitig forth' the disqualifies.
The first ground of'objection was not further urged and was distinctly abandoned. Inasmuch as by the Constitution in case a Register of Wills is interested in questions concerning the probate of wills, the cognizance thereof belongs to another tribunal, the Orphans’ 'Court, there is, of course, no basis for an objection to the competency of the Register óf Wills to testify as an attesting witness at the probate of the will in the Orphans’ Court. Against the sufficiency of this objection the attorney for the will cited authorities to show th&t a person is not disqualified to act as subscribing witness to a will because at the time of the execution of the will he was a judge of a court for the probate of wills. ’ Schouler on Wills, 172; Patten v. Tallman, 27 Me. 17; Panaud v. Jones, 1 Cal. 488; McLean v. Barnard, 1 Root (Conn.) 462; Ford’s Case, 2 Root (Conn) 232. He would, of course, be disqualified to probate the will.
The other ground of objection related to the competency of Mr. Elliott. Testimony was heard before the Orphans’ Court which showed that Mr. Elliott was a stockholder and director of The Equitable Guarantee and Trust Company, and that the number of shares of the stock of the company held by him was fifty. There was no evidence of any other interest which he had in the estate of the decedent in any way.
Whatever may have been the decisions before 1881, one decision has been rendered in Delaware since that time which is decisive of this case, and binding on this court. The Act of April 6, 1881, (Chapter 537, Vol. 16, p. 798, of Revised Code) removed the disability of interest in a witness and made a person interested in the event of the suit or matter to be determined competent as a witness, except in proceedings by or against executors, in which a judgment or decree may be rendered for or against them. In the case of In re Spiegelhalter’s
The case of In re Spiegelhalter’s Will also decides that a trustee under a will is'not disqualified to be an attesting witness, for interest in the event is no longer a disqualification. If Mr. Elliott had been executor arid trustee under this will, he would not have been incompetent as an attesting witness, much less would he be here since he is not executor or trustee, but an officer and holder of a small number of shares of stock of a corporation named as executor and trustee.
Counsel for the will in his brief cites authorities of other coúrts which sustain the decision of the Superior Court, but it is not necessary to advert to them.
The argument for the caveators is based largely on the decisions of a Pennsylvania statute respecting gifts by will to or in trust for charities. This statute expressly requires that in such cases the witnesses to the will shall not only be credible, but “at the time disinterested”. Of course, decisions respecting this statute are not helpful in interpreting or applying our own statute.
There is no ground to sustain the caveat, and'an order will be made admitting the will to probate.