68 Vt. 132 | Vt. | 1896
The single question presented for consideration is whether a husband, who is not a legatee, and who by an ante-nuptial contract has relinquished all right to any property of his wife, and to any and every part of her estate, was a competent witness to her will. If he was, her will is witnessed as required by V. S., 2349. If he was not, her will is not witnessed as required, and the judgment of the county court disallowing the proposed will was correct. The decision of this question depends upon whether the competency of the witness is to be determined as of the date of the execution of the proposed instrument, or, as of the date when he is sworn to establish that the instrument was so executed, that it is entitled to be probated. If to be determined as of the latter date, the husband would be competent to testify to any matter occurring during the existence of the marital relations, except such as came to him in marital confidence, or as would directly tend to disgrace or criminate his deceased wife. The testimony called for would not fall within the exceptions. French v. Ware, 65 Vt. 338. She is not a party in interest or otherwise to the proceedings to establish the instrument as her will. Foster’s Exrs. v. Dickinson et al., 64 Vt. 233.
If his competency is to be determined as of the date of the execution of the will, the husband was incompetent, not because he was interested in the will or any of its provisions,, but because he was the husband of the testatrix, ánd, because of that relation, incompetent to testify for or against
Judgment affirmed and ordered to be certified to the probate court.