52 Iowa 662 | Iowa | 1879
The referee found as a conclusion pf law, based upon the facts reported by him, that the will was properly executed and ought to be admitted to probate. Tlie contestant filed exceptions to tlie conclusion of law reported by tlie referee, which were overruled. This ruling of the court and the decree admitting the will to probate are made the grounds of the only assignment of error in the case.
II. The appellant insists that the testator should publish the will, that is, “give the witnesses to understand what the instrument is, and that he knows the nature .of the transaction in which he is engaged.” The correctness of this position presents the only question discussed by counsel. We proceed to its consideration.
Code, section 2326, provides that a will to be valid must be in writing, witnessed by two competent witnesses, and signed by tlie testator, or by some person in his presence and by bis
The statute requires that the instrument shall be “ witnessed ” by two competent witnesses; this is the only requirement as to the attestation of the will. To witness, means “ to see the execution of as an instrument, and subscribe it for the purpiose of establishing its authenticity.” This may be done without any declaration by the testator to the witnesses as to the character and purpose of the instrument, which amounts to what is called publication. We conclude that the language of the statute does not require publication of this character. Statutes similar in provisions, as the Statute of Frauds, 29 Oar. II, cli. 3, which requires wills to be “attested and subscribed” by witnesses, have been construed by the courts not to require publication in the sense of the term as it is used by counsel in the discussion of this case. See 1 Eedfield on Wills (Ed. 1869, Oh. VI, § 18, pp. 13, 14, 17, 20, 21 and 29; § 19 pp. 23 and 24; § 23, p. 9 and notes).
III. Counsel for appellant cites Lorieux v. Keller, 5 Iowa, 196, insisting it holds that.publication of the will in the presence of witnesses must be shown. The language of the decision upon which counsel rely hardly has the force and effect they give it. But certain it is, the question as to the necessity of publication in the presence of the witnesses was not in the case, and was not decided.
We conclude that the Circuit Court did not err in confirming the report of the referee, and in admitting the will to probate.
Affirm:ed.