38 Tex. 296 | Tex. | 1873
We think that much of the learned discussion of England and America upon the subject of the necessary qualifications of attesting witnesses to a will, is rendered comparatively nugatory by ¡the operation of our statute; and while we may look to other States and countries whose laws and institutions are similar to ours for rules of legal interpretation in doubtful cases, yet, when our statute speaks in plain and unambiguous language, that must be not only our rule of action, but of construction also.
Our statute (Paschal’s Digest, Art. 536) provides that when a will is not wholly written by the testator, it shall
The controversy which has been long carried on as to the time when the attesting witness must be credible or competent, whether at the time when he attested the will, or when he was called upon to prove it, does not properly arise under our law in the case at bar, and we are therefore happily relieved from an attempt at the solution of that much mooted problem.
The will of Col. Thomas Carothers was written by one of the legatees and attesting witnesses, and attested by E. B. Nixon, L. D. Cox and Primus Johnson, all of whom were legatees under the will, and were incompetent attesting witnesses at the time of attestation; and as the statute referred to requires this will-to be attested by two or more credible witnesses, the attestation was in violation, or rather in disregard, of the statute, and the will itself, under the decisions of most of the States, would be declared void if adjudged at the time of attesting. But after the death of the testator, and before the will was offered for probate, Primus Johnson, one of the witnesses, relinquished his bequest, and then came forward and proved the will.
This statute was evidently passed for the purpose of preventing wills from failing when one of the subscribing witnesses had received a bequest under its provisions, but we can hardly imagine that the Legislature supposed that such a state of facts would be likely to arise in Texas, where three persons, strangers in law to the testator, and the principal legatees of a considerable estate, would be the only attesting witnesses of the proper execution of a will which one of their number had written. Had John
Again, there never has been but one credible or competent attesting witness to the will, and in order to sustain the will under the statute, at least one other attesting witness would have had to relinquished his bequest, and we can discover no rule of law or equity which could have distinguished between the three witnesses, had not Johnson made a voluntary relinquishment and selected one for sacrifice, while the other two were left to enjoy the bounty conferred, and to which bounty they were their own witnesses. We think the only proper and reasonable construction of Article 5370 is that all bequests made to attesting witnesses shall be absolutely void, unless there are the required number of witnesses attesting and to prove the will, who have received no bequests.
Again, the statute says that if the will cannot be otherwise proven, the bequests to the attesting witnesses shall be void; and if void, then its nullity must relate back to the time when the pretended bequest was made, and not to the relinquishment by Johnson. If that be so, then every bequest to attesting witnesses became null on their signing the will; for without that effect the will could not have been proven, as it had no competent attesting witnesses.
And again, any other construction of Article 5370 would render wholly nugatory Article 5361, which de
Nor can the operation of the recent statute authorizing parties to testify in their own behalf, be invoked to aid the cause of appellants, as that statute was never intended to authorize parties to witness instruments executed to themselves; while the second section of that act prohibits either party to this suit from testifying as to any transaction with, or statements by, the testator.
Under this view of the law, we must decide that, under Art. 5370 of the statute, the will of Thomas Carothers is not absolutely and wholly void, for the want of the requisite number of competent or credible witnesses, but that the bequests to all the attesting witnesses are void ; and further, that the will was properly probated as to all of its other provisions and bequests, excepting such as relate to the benefit of any and all of the attesting witnesses.
The judgment of the District Court is reversed and the cause remanded for proper proceedings in the court below.
Reversed and remanded.