This is an appeal from a Probate Court judgment determining the rights of the beneficiaries under the will of Warren T. Elliot (testator). The appeal challenges the judge’s conclusion that by virtue of G. L. c. 191, § 2, a legacy or devise to the spouse of a necessary subscribing witness is void. We granted direct appellate review. G. L. c. 211A, § 10 (A).
The testator executed a will in 1972, leaving all his property in equal shares to his three daughters, Jane A. Ely, Noreen Grant, and Frances Kokofsky. 1 Mrs. Ely’s husband was one of the three subscribing witnesses to the will. The testator died in February, 1973, leaving his three *779 daughters as next of kin. A petition for the probate of the 1972 will was allowed, and Mr. Joseph D. Rosenbloom was appointed administrator with the will annexed (administrator) ?
In response to a petition for instructions filed by the administrator, the judge entered a judgment to the effect that, on the basis of G. L. c. 191, § 2, which voids testamentary gifts to a subscribing witness to a will or to the spouse of such a witness, the legacy and devise to Mrs. Ely were void because her husband was one of the three subscribing witnesses to the will. Mrs. Ely appeals from this judgment and challenges the interpretation of G. L. c. 191, § 2, on which it is based. 2 3
At common law, a person was incompetent to serve as a subscribing witness to a will under which he benefited as a devisee or legatee. 2 W. Page, Wills § 19.76 (Bowe-Parker rev. 1960). A will witnessed by an interested party was therefore void unless there were a sufficient number of other competent witnesses to satisfy the requirements for execution. Id. Most States have altered this rule, substituting provisions which allow a devisee or legatee to serve as a subscribing witness, but restrict his right to benefit from the will. Id.
These provisions are of several different types. Many States void so much of a bequest or devise to a witness of the will as exceeds the property that the witness would have taken if the deceased’s will had not been established. T. Atkinson, Wills § 65, at 315 (2d ed. 1953). 1 W. Page, Wills § 335 (3d ed. 1941). See, e.g.,
Estate of Herman,
Massachusetts is one of a small number of other States, see, e.g., N.H. Rev. Stat. Ann. § 551:3, which have chosen a third, more exclusive, rule. General Laws c. 191, § 2, provides that “a beneficial devise or legacy to a subscribing witness or to the husband or wife of such witness shall be void unless there are three other subscribing witnesses to the will who are not similarly benefited thereunder.”
4
Mrs. Ely urges us to reject the construction of this provision which we adopted in
Powers
v.
Codwise,
It is clearly possible that § 2 will, at times, produce harsh results. However, the question whether an alternative formulation would be more equitable is beyond our authority to decide. The scope of the authority of this court to interpret and apply statutes is limited by its constitutional role as a judicial, rather than a legislative, body. See art. 30 of the Massachusetts Declaration of Rights. In construing a legislative enactment, it is our duty to ascertain and implement the intent of the Legislature. See
*781
Baker Transp., Inc.
v.
State Tax Comm’n,
We believe that the language of G. L. c. 191, § 2, is clear and unambiguous. It states with no uncertainty that a legacy or devise to a subscribing witness or to the spouse of such a witness is entirely void. The plain meaning of the language of the statute must be given its full effect, and the testamentary gifts to the appellant here were thus properly declared void.
Mrs. Ely’s argument is further weakened by the history of G. L. c. 191, § 2. The provision has existed in a form similar to its present one since 1878. See St. 1878, c. 122, § 1, amending Gen. Sts. c. 92, § 10 (1860). In 1899, this court held that the statute (then codified as Pub. Sts. c. 127, § 3),
6
voided a legacy because the spouse of the legatee was a subscribing witness to the will.
Powers
v.
Codwise, supra
at 426. The Legislature has since had ample opportunity to alter this construction of the avoidance provision, but has not done so. Recently, § 2 was modified to reduce the number of subscribing witnesses
*782
necessary for the proper execution of a will, but the language of the section that voids a legacy or devise to such witness or his spouse was left intact. See St. 1976, c. 515, § 5.
7
We presume from this action that the Legislature adopted the interpretation announced in the
Powers
case, see
Bursey’s Case,
The cases relied on by Mrs. Ely are based on statutes materially different from G. L. c. 191, § 2, and are therefore of little authority in the decision of the question presented here. In
Manoukian
v.
Tomasian,
Judgment affirmed.
Notes
Article Second of the will left all the testator’s personal property to his three daughters, article Third left them the proceeds from the sale of all his real property, and article Fourth, the residuary clause, gave them equal shares in the residue.
The testator had nominated Robert M. Raymond as executor in his will. However, because Raymond declined the trust in open court, the Probate Court instead appointed Mr. Rosenbloom as administrator.
At oral argument, the attorney for Mrs. Ely attempted to raise a constitutional challenge to the statute. Because this issue was neither presented to the Probate Court nor argued in the briefs, we do not reach it. See Mass. R. A. P. 16 (a) (4), as amended,
Effective January 2, 1978, the requirement of § 2 will change from three to two witnesses. St. 1976, c. 515, § 5, as amended by St. 1977, c. 76, § 2. In all other respects the provision remains the same.
See supra at 779-780.
This provision, substantially similar to G. L. c. 191, § 2, provided: “A beneficial devise or legacy made in a will to a person who is a subscribing witness thereto, or to the husband or wife of such a person, shall be void unless there are three other competent subscribing witnesses to such will.”
See note 4 supra.
The District of Columbia statute construed in
Manoukian
v.
Tomasian,