Richardson v. Richardson

35 Vt. 238 | Vt. | 1862

Poland, Ch. J.

The first question, whether an executor, who takes no benefit under a will, is a good witness to its execution, seems very well settled by authority.

It was so decided in Sears v. Dillingham, 12 Mass. 358, where the precise point was before the court, and under a statute identical with our own. It is said by Ch. J. Parker in that case, that such is the English rule. And it seems to have been settled so in the case of Phipps et al. v. Pitcher, 6 Taunt. 220, (E. C. L. 1 Vol. 363,) which was a case sent to the court of common pleas from the court of chancery for their opinion on the point. The point is decided in the same way in Connecticut; Comstock v. Hodlyson, 8 Conn. 254. Also in New Jersey; Dew v. Allen, 1 Pennington 35. Also in Virginia; Coalter v. Bryan, 1 Gratton 18. Also in Pennsylvania; Vansant v. Boileau, 1 Binn. 444. The only case cited by the plaintiff as supporting the contrary is that of Barrett v. Silliman, 16 Barb. N. Y. Sup. Ct. 198, a case decided by the supreme court of the hird judicial district in New York. Harms, J., who gave the opinion in that case, states that by the common law the executor is not a competent witness to a will, but he cites no English case or author, to sustain him. He quotes a case from South Carolina, Taylor v. Taylor, 1 Rich. 531, and two cases from North Carolina, Tucker v. Tucker, 5 Iredell 161, and Allison’s Executors v. Allison, 4 Hawks. 141, to show that in those states, an executor is held not to be a ¿ompetent witness to a will. But in a note by Judge Perkins to Jarnan on Wills, 1 Vol. p. 66, these cases are cited, and it is stated that they .decide that the executor 'is a good witness to a will disposing of real estate, but not to a will of personalty, because the statutes of those states give an executor commissions, upon the personalty, placing the executor much upon the same ground as a legatee under the will. With this explanation of these cases, they afford very little authority for the plaintiff’s position under our statute.

It is held by Judge Harris in the same case, that the executor may be rendered a competent- witness, by his renunciation of his executorship. It is not very apparent how this could be, if he was not a credible or competent witness at the time, by reason of his then having an interest under the will by being named as an executor therein, for all the authorities now agree, that the validity of the will in this respect, depends upon the competency of the witness at the time, and not when the will is propounded, and this seems to stand on the soundest foundation in reason.

The executor was offered as a witness to establish the execution of the will, and rejected, although he offered to renounce his executorship, because he was also a trustee under the will of the bulk of the estate, and therefore interested to have the will sustained.

The decision excluding the executor as a witness at the trial, was proper enough for aught we can see. In Sears v. Dillingham, 2 Mass., the executor was rejected as a witness on the trial, as the court held, that being a party to the record he might be liable for costs, but that his interest arose from the liability he had taken upon, himself, and not from any benefit he derived under the will.

Notwithstanding what is stated by. Judge Harris, as to the executor not being a competent witness to the will, and after he was rejected as a witness at the trial, no question seems to have been made that the will was invalid by reason of not having been attested by a sufficient number of competent witnesses, and the court proceed to dispose of the case upon other questions, and the will was finally held invalid on two grounds : want of sufficient capacity in the testatrix, and because it was not declared by her to be her will in’ the presence of the witnesses, as the New York statute requires.

The questions decided appear to have been properly disposed of, but it appears' they were not all treated in the most logical way by Judge Harris in his opinion.

If the question were new, we see no good reason why the executor is not a credible or competent witness to a will, under which he takes no interest, but is named as executor. It is at the time altogether contingent and uncertain whether he will ever be called upon to perform the duty of executor. He may die before the testator. The testator may revoke the will, or make a new one, and appoint another executor. But if it be regarded as settled at the time, that he is to be -executor, the only interest he can be said to acquii'9 is to perform a service, for which he is to receive a bare compensation, just in proportion to the service performed. This' can hardly be regarded as a legal interest, by any rule that has ever been recognized in the law.

If a fixed per cent, were given by law, irrespective of the actual services performed, it would be quite a different case.

The other question, as to the effect of the testator’s declarations after the execution of the will, that he was induced to make it by the influence of bis wife, was fully settled in the ease of Robinson v. Hutchinson, 26 Vt. 38, upon a very full argument, and great consideration, and we think upon grounds satisfactory both in reason, and upon authority.

The judgment is affirmed, with costs in this court, and ordered to be certified to the probate court.