233 N.W. 274 | S.D. | 1930
On October n, 1926, Henry Otting executed an instrument purporting to be his last will and testament. When this instrument was offered for probate, Tessie A. Siekermann contested. The county court admitted it to probate, and on appeal to the circuit court the action of the county court was affirmed. The case is before us on appeal from the action of the circuit court.
There are but two questions presented by the assignments; First, the competency of one of the subscribing witnesses; second, the sufficiency of the evidence to support the judgment.
We first review the sufficiency of the evidence. It is claimed that the will was procured by fraud and undue influence. We have carefully examined all the evidence, and do not think it would serve a useful purpose to set it out in detail. There is no evidence of fraud. As to undue influence, the evidence is exceedingly meager. Testator was about eighty-four years old, but seems to have had a vigorous and determined mind, and nothing indicates that it was weakened by age or disease. He had no1 relatives nearer than cousins. Contestant is the daughter of a cousin. She
As to the other question, it is contended that the attesting witness, Elizabeth M. Colby, was not qualified to sign as an attesting witness because the will gives to Edward Colby, her
“All beneficial devises, legacies or gifts whatever, made or given in any will to a subscribing witness thereto, are void, unless there are two other competent subscribing witnesses to the same.”
This section is a special statute which must prevail over the general statute. The effect of the provision is to preserve the competency of the witness to testify by making attempted gifts to her void. Being void, she would have no interest, nor would she ever have had any interest, unless the will had two- other competent subscribing witnesses, in which case she would not need to testify. The will involved in this case was witnessed only by Mrs. Colby and one other. It would be manifestly unfair to other beneficiaries to disqualify such witness so that the will could never be proven. We think that the purpose of section 638 is to avoid that contingency. No valid gift can be made in a will to such a witness. Therefore Mrs. Colby has never had any interest in the subject of the action, and is not disqualified. In thus disposing of the case we do not hold that the provision of the will disposing of the mortgage as it does is invalid. As to that we express no opinion.
The judgment and order appealed from are affirmed'.