*1 v. HARRIMAN. due, faith before it became and plaintiff been having purchased from exist equities to hold free which any might is entitled note. to the between the original parties defendant these he J. When the signed papers, supposed Ladd, ” “ from word to be realized the worthless patent meant profits profits run; was the which had to such contract during the notes year drawn, asway fact made. But the were such papers cunningly he defendant, mind under- carry idea to the knew the one they mind of which were another to the standing given, upon ignorant who had such and was also of the transaction knowledge, no of a rogue It was the to overreach out which device they sprang. has unwary. and defraud referee found that word “the ‘ was not such an note, as inserted in defect profits,’ apparent in the mind of infirmity as raise a suspicion necessarily plaintiff’, toor cast transaction as to him in- such shade upon put that also finds took the notes quiry.” He the plaintiff' payment before their land, and bona holder of them the innocent became fide no obviously These leave maturity. findings the legal which has construction of the been considered instruments, by my them, brethren; that, stand, as the agree,with papers they show them gives which character unqualified promise pay, legal ” that notes, and the word rather the con- promissory profits imports sideration they given, fund, were than contingent any fund, out were to There of which must be paid. on the

Judgment report plaintiff. Stewart v. Harriman. Aug. 13, 1875. Probate Appeal—Attestation. of will— The statute of July 2,1822, that case will any should provided, interested, any without notice to the

proved interested parties party should reexamined, presented entitled have the probate &c., “Provided, that no judge this : such probate, proviso appli- cation shall be sustained unless one year within preferred time nor if an such has been probate, appeal probate prosecuted Stats., before the ch. sec. superior court.” Gen. By is the —which same as in the Revised provided Statutes “Any party —it interested has been probate any of will which proved without reexamined, notice formbefore solemn proved court of from, no within one such probate, probate, appeal before court.” prosecuted supreme Held,

VOL.LVX. STEWART did the meaning change change language *2 statute, filed one year and that the in would be season within petition from the time of in common form. probate attesta- witnesses to a must be at the time of attesting competent will tion. wife,

The executor named in the his attesting as also is a competent witness, if he takes no beneficialinterest under it.

The fees and commissions in this to which executor is law entitled do constitute such beneficialinterest as him or his to render to attest the execution of a

wife will. the Merrimack Probate

From Court. of certain of law the follow- raising questions only, For the purpose viz., facts is an decree of were case agreed, ing appeal —This said and Merrimack, of of of county proving ap- the judge probate last will late of Davis, a certain of Francis paper proving in said deceased. The said died on Warner, county, August testator and said instrument was in form as the last common proved at Davis, of Francis held in and for said will said probate court,- Concord, 27,1872. August at county, Judith August 9, 1873, Stewart, A date H. bearing of petition, sole of said of said child and heir-at-law for only testator, probate on form, August 9, 1873, was filed said in the probate solemn and on in due form county; 12,1873, of said citation August court on duly for said at a hearing petition, probate law was issued of Concord, on the Tuesday holden at fourth September, be court 1873. said counsel for the executor hearing petition, appeared At the form, for the reason objected probate and solemn specially, had since of the same in year than one elapsed that more probate could not now form, and that the said will validity common allowed, Said instrument was and said approved questioned. as of said Francis Davis. One of the three wit the last will A. who Harriman, was, at date Mary said instrument nesses said H. Harri thereof, and now the wife of is, Henry the execution instrument, said and therein ex wrote named man, who and and trusts, wThohas said office has been ecutor, duly and accepted thereto, was, date of such qualified respect appointed is, A solemn form, acting capacities. copy the said instrument, testator, last will said purporting said made case, of this argument. referred part has was, 27, 1872, Judith H. since August The said Stewart been, that is date and now married wife woman, say, of said Warner. Leonard Stewart for the appellant. . Mugridge, Gfreene, Hawthorne Tappan, v. HARRIMAN. Eastman, Page Allin Sargent whom were (with Chase), & the appellee. J. Cushing, It is appellee, change contended the words of the statute Revised Statutes changed construction, so that now the whole on the proceedings, form, in solemn must be prove within one completed from the date of the in common form. proof This construction of the statute would render the of limitation period form, probate, solemn ambulatory, depending not diligence in claiming his but on his luck in party right, getting contested ing in one we through litigation year. When consider how few probates are ever consider- year, completed especially *3 the the right time in such ordinarily consumed appeal if seems as the statement of appeals, mere the would consequences to show enough the construction It untenable. is well set- enough tled New that, law, on a of a Hampshire, revision change mere shall not be deemed a phraseology change law, unless such phraseology an intention evidently purports legislature work Jewell 41 N. change.” Holderness, therefore, v. H. 161. I have, no difficulty that it is if holding sufficient form solemn from be filed within one the date of the probate common form. The second whether the question is, wife executor named the will was a witness. competent By Gen. Stats., cli. disabilities of removing by witnesses reason enacted, of interest, parties it is otherwise, sec. as follows, viz., of this shall not afreet provisions chapter the law relative —“The to the attestation of wills or other required instruments be attested by subscribing witnesses.” It is well settled witnesses must competent at the v. 253; attestation. Hindson 1 cited Redf. on Wills Hawes v. Kersey, 350; v. ; 9 Pick. Haven 23 Hilliard, Pick. 10 Carlton v. Humphrey, 14; Carlton, 40 H. Redf. N. on Wills 2 cited; cases Vesey, C.; L. Jr., v. Stra. 1253. Anstey Dowsing, Roslyn, v. Lowe case of spirited most account of Jolliffe, graphic which given William by Sir Blackstone —1 Wm. Blackstone 365— Mr. Dovey, trust the will being under which a legacy had two hundred been him given trouble, for his was pounds admitted his to witness, on his Mr. releasing was not an testify legacy. Dovey attesting time, at that when would any have ex- pecuniary cluded him testifying, well from attesting will, it was held release must his and that then he legacy, would that.he be. the J that held, I competent. believe law is now that universally named as executor person the will he takes no competent pecu-i' niary it. interest under

The only then, question remains, is, whether the executor’s right to the fees the laws of this ordinary under con- commissions, v. HARRIMAN. My

stitutes such a him incompetent. beneficial interest as render and, I not, although brethren have do reached the conclusion that they cannot them, with agree I that acknowledge preponderance out of the am not aware benefit authority way. any state is that I which could result from discussion me. 1, The takes no is, result this will therefore, that executor under 11beneficial interest him and that there- such as render incompetent, a good wife was witness. fore of Judith H. Ladd, J. chief agree justice, Stewart form not lost by solemn proved time, reasons he do not wish to add lapse anything for that given conclusion. A. wife Harriman, second Was Mary the case witness” within Harriman, H. a “credible executor, Henry of the will? statute, at the time of the execution meaning husband was dis It conceded that her whether depends upon that ho was therein qualified to be a the fact most named as elabor has, therefore, executor. This question ately great discussed called our attention who have by counsel, or less American, number of more cases, bearing both English uni authorities, seem to be it. directly upon English As to the form, interest under the who takes no beneficial ; Pitcher, is a Taunt. 220 Bettison good attesting witness. Phipps 139; see Welford, Doug. 12 East 250 Goodtitle v. Bromley, — and Lowe counsel for said, however, 1 Wm. Bl. 365. Jolliffe, *4 well because enough, Eng that these cases stand appellant, trust, for the per land the office of is a burdensome executor simply allowed; where, as in is formance which no compensation the hands of the executor a to moneys coming commission on trouble, care, and and for the services, remuneration his by way 8 N. H. he West, 444), risk not otherwise compensated (Gordon him be a to such a will as disqualifies takes direct under the interest witness. of interest at reason by The question Was the witness 12; Stats., 175, sec. see the time Gen. ch. attesting the will? — and is deter this question Redf. Wills n. 1. It seems to me rule with re mined the negative by plainest application books cases. in all the interest, as laid down disqualifying must be Greenleaf, is, present, rule, That Professor given by —It uncertain, remote, or and vested and not an interest certain, ¡spect always recognized this has Gr. 390. That sec. contingent. Ev., abundantly rule is shown this state as of the a correct statement it was discussed where ap the numerous cases our by reports, Mor. of interest. before the plied removing disqualification statutes Interest, tit. et Dig., p. seq. fact, that, if by is rule met Which one of the of this requirements nor nominate another, make .the does not his nor will, testator revoke is trust, lives, executor, another duly and the and accepts enters actually court, and by to administer appointed ? to commissions administration, he will be entitled ? attestation at the time Was the interest interest present take will does this is found in the fact, The answer to answer The it certain? effect till the death the testator. Was testator, before fact, this is found in the the executor died that will go is which he has taken the will there nothing is will. of by heir or' or that he can himself administrator, dispose sense or in what inconceivable to me term, what ground, proper be recalled vested, an interest can be called which may creation, after its him who has it at moment obliterated created has ever of its and enjoyment before possibility possession as almost this, arisen. A like so evanescent and uncertain thing in- an called elude the seems entitled legal hardly keenest optics, de- terest fined, “vest” all, much less vested interest. The word enjoy- or future immediate, fixed give right present than else ment.” Bouv. L. an A vested can nothing Die. interest mean or interest of which there a fixed right present respect it, destroy will to future make a of a testator over his enjoyment. power to leave seems one, executor, certainly new another appoint narrow of the executor ground for the contention that the interest therein named a vested interest. that “an heir J., Smith v. held Blackham, Salk. Treby, land, but a re may be a witness title of the apparent concerning the land; but mainder man for he hath a cannot, estate present to be going the heir is more This seems

heirship contingency.” hold about as far as to that an to whom a beneficial is no fixed may be witness. There given as to future case, enjoy either contingency lore-sent ment is to all in the case devisee great legatee appearance testator, before the death of the the of an heir before apparent case But I have not anywhere death the ancestor. seen the doctrine Ev., law. 1 Gr. sec. and Mr. Greenleaf it as questioned, quotes later, 390. This case was in 1699. hundred Nearly years Kenyon Baker, case of Bent v. 3 Term Lord has some observations says, mentioning oh the He subject, quote. premise, —“I what was said Lord Mansfield 1 Term 300) Shelley, (Walton ‘ *5 cases, witnesses, on this old the competency that subject, upon But of late the courts very years have subtle gone grounds. authorities, as far as consistent with those endeavored, have to let possible to the credit rather than to the objection go competency ’ witness; of so stood need the opinion great judge any it of Lord it would have sentiments support, Hardwicke, said, Hard., 360), the case of King (Rep. Temp., Bray on which a doubt be might whenever a of this sort arose it to rather than raised, he was inclined to restrain the credit always to the making such observations witness, competency STEWART HARRIMAN. jury tlie nature of the case should two require. Now, fortified with such these, authorities as I have no concur my scruples declaring rence that, it, any wherever there are not positive rules law against nevertheless, it is witness, better receive the evidence of the making, such observations on the credit of the as his party requires.” situation But in the case which we are after an considering, of almost lapse other when the law has unmis century, become fixed and policy takable in the direction of I rather admitting than excluding light, think it is to invoke quite unnecessary even the thus sensible doctrine announced for emphatically by Hardwicke, Mansfield, Kenton; in none of the cases I oldest have found a witness for interest excluded ground sufficiently subtle to warrant us in this witness holding incompetent. v. Richardson, Richardson do Vt. and I exactly point, how see a different can be such position held without overturning cases Sears v. 12 Mass. Dillingham, 358, Comstockv. Hadlyme, others, Conn. and a multitude of courts, decided American which Judge Redfield Redf. Wills n. (1 support cites 12) of his own statement, that “the of an proposition competency executor to be the witnesses of the will seems to settled be well American states.” thus far placed my opinion upon sole ground executor, right named in the will, to administer testator’s estate, and so to commissions, certain, receive was not a present, vested him, to render what or, amounts to the same wife, thing, so,— But even incompetent. this is not admitting that his was then right fixed, certain a fur has still formidable, appellant —the ther say to overcome which seems to objection, me extremely least; —Did that constitute an interest of such character as to ? disqualify Poland, Upon point, J., as Richardson v. Richardson, But if it be says, regarded settled supra, — “ only that he is tobe interest he can said is to be to acquire a service, for which he is to receive a perform bare just compensation to the service This can proportion performed. hardly regarded legal as a rule that has ever interest, by recognized cent, If were given law, law. a fixed of the actual per irrespective it would be services different mind quite case.” To performed, my that is But it be conclusive. whether so it is regarded not, certainly doubt, very grave sufficient to raise such a doubt as makes it the of the court to the doctrine of the duty great al apply English judges ready and admit the fact of inclination weighing quoted, or bias thus mind, created her whatever bemay worth, credit. her against Smith, J. than absurd that a would be little less to hold filed, of a will must not only the reexamination the probate or trial had, but that thereon should be and a decree hearing judg- ment all of one rendered, within space *6 31

STEWART v. the use even ordinarily will. a could not reached Such result a such construc- utmost If intended diligence. legislature 175, 7—sec. Stats., tion ch. should the statute —Gen. be put upon are serious so, consequences to and too they say have failed to be inferred such intent is involved to warrant us holding used. language named of a The other raised whether attesting wife person a This of will. witness to executor is credible execution first time. far for the question, aware, so as I am is here presented decisions other examined, have far as I had so opportunity, and South Caro- in North states, and, with the of the courts exceptions otherwise inter- lina, are not executor, the authorities uniform a will, ested in is a witness. competent attesting an 250, executor, taking In v. 12 East Bettison wife Bromley, attest will, competent no beneficial interest under held to be was of a to within the it, description witness the execution of ing prove ch. 3, credible Lord sec. 5). witness the statute of frauds Car. (29 decided so J., long had been said, point Ellenborough, — no interest in the time, as Lord Hale’s ago having an executor was a to a cause concerning witness surplus prove estate, and this had been other decisions the same followed So, executor, Pitcher, effect.” v. Taunt. an clothed 6 Phipps a trust to debts, out for benefit money pay lay children, testator’s cial benefi lands, taking and with to sell but no power interest witness to the held to be good will. cases, Of St. an Bull, Pa. is able American 17 Snyder held to J.,C. where the executor was opinion compe Gibson, tent He for the moment that said, witness. Granting —“ the office of an is a not an one, he was beneficial nominated, executor; an for no man but he though eventually, might, living not. He might be one. True: but he die might testator, revoked, lifetime of the or he his nomination might not find have had execu it convenient He might accept. not witness disqualify but does torship contingent prospect; the time attesting. the time an reason at deposing, equal renounced, sworn; would Had he renunciation yet he have been might But, not have been a of an interest. contemplation release immediate the ser law, England, is not officeof executorship profit. here, the and, though design vices are are gratuitous, paid more, sometimes and seldom the allowance less; is compensation. that he has not get nothing the executor supposed it is the fault of the much, and if earned, gets he sometimes too * * rule can the ex no of evidence Now, law. job and interest which of a more than pectation go credibility; fat and certain.” competency fixed goes Larrabee, in Jones v. way Maine, This decided the same point Baxter, Me. Patten Me. 474, Tollman, Me. Warren

STEWART v. HARRIMAN. also, Massachusetts, 358, in Sears v. 12 Mass. Dillingham, Wy- man also, v. 153; v. Connecticut, 10 Allen in Comstock Symmes, 8 254; also, Conn. in New v. Hadlyme, York, McDonough Laughlin, 20 Barb. 238. To the same effect are v. Allen, J.) Dew 1 Penning. (N. 35, Coalter v. 1 18, Castro, 354, Grat. Perolta v. 6 Cal. Bryan, (Va.) v. 12 v. Hummer, B. Monroe 619, Meyer, (Ky.) Meyer Orndorff Fla. 7 292. In Richardson v. it Richardson, interest the executor was said the only can said to is, to is acquire perform a for which he to receive service a bare compensation,just performed. proportion to service In v. Chief a contra construction Meyer Justice Beltzell Meyer, says “ would ser- disqualify only rendering but all others executor vices to the estate. The is a com- judge of himself allowed pensation for his services in will: he not why taking probate ? In like estate, manner sheriff, appraisers mechanic, auctioneer, merchant, service, are rendering lawyers entitled to : and incom- compensation why are not also disqualified ”? petent witnesses In v. McDonough wit- Laughlin, Cassidy, supra, ness, was named B. executor and in trust. S. residuary legatee Strong, J., said, undoubtedly beneficial have an to employment —“It for a reasonable compensation, but benefit is not of a character disqualify witness: and it is to such statute refers. only * * I am decisions, inclined follow seems me English they are supported by the that in true, England better reason. It is ; the executor has not services generally any compensation it is narrow stat- taking very view of the that the subject to suppose ute for what often unthankful allowing meagre compensation are too services, can compe- confer a benefit as to an otherwise disqualify tent witness. The of modern is to relax rules tendency legislation exclusion, and I where rules were yield spirit the age those merely technical had no substantial foundation.” This decision Silliman, overrules Burritt v. the conclu- clearly 16 Barb. where “ sion was reached J., stated with some Harris, hesitation.” In Tucker, conflict with v. seeming decisions is Tucker foregoing Ired. where the executor was an interested held (N. C.) witness, because the act over gave legal right executor and above his on the disbursements to commissions charges per- sonal estate.” remark, In v. Law Huse Jones’s the court McConnell, (N. C.) —“ It is well settled that an witness a will must be compe release, at the that no where attestation, tent subsequent objection leading one of can restore The competency. fol Allison, case in this Allison v. 4 Hawks 141. This was state case v. Tucker,

lowed of Tucker 5 Ired. which the case 368. 11 Ired. Allison is cited and and Morton Ingram, approved, Both are referred to as correctly decided, those cases has is such an under our statute commissions which not remove that a does release interest as disqualifies disqualification. named as Connell, v. Me the wife the person In the Huse case of would be witnesses and the case executor was one of the subscribing if it in this state. here, is authority directly point the peculiar North Carolina cases turned upon decision these over statutes, which the executor commissions gave of their provisions Allison and above his court a disbursements. Allison charges *8 an as disqualifies to commissionsis such interest say that the right law to commissions. witness, and that the executor has distinguishable These are thus authorities clearly decisions not cited, allowed, of other where commissions are states above in this but, virtue of as statute as perquisites, some peremptory N. West, for services. 8 H. compensation Lucy Gordon 9. N. H. Lucy, In 1 Rich. an was held executor be C.) Taylor, (S. Taylor of witness to a will under attesting personal property, 1824; the act of but the divided several decision very delivered able dissenting opinions. judges then, in this uniformly decisions appears, country support in the doctrine that the not otherwise interested is a from the cases above cited competent attesting except which would seem to stand Carolinas, upon grounds. exceptional the face so and concurred in courts emi- numerous, of authorities dissent, of their I should nent hesitate ability even judges, though be doubt as to the soundness of the there might principle rest; I think it has shown clearly which there is no decisions their well grounded objection competency as an to a score of in the witness will on the compen- sation ought is entitled for services and the rendered, to which he principle to be day legislation not at questioned. policy years excluding late mony has been to relax the strictness the rules testi- admit and to such witnesses ground available, to weighed with the credibility evi- leaving suits, dence. removed from in civil Disabilities have been from parties and from convicted prisoners prosecutions, criminal persons in the until an obstacle remains crime, scarcely way preventing any issue, and as to all can throw every one, any light upon testifying within his knowledge. facts is not therefore, To that Mrs. Harriman hold, competent attesting would, my retrograde witness this will judgment, taking step govern that should the admission of interpretation principles and in trial of of cases causes evidence this class especially, to take narrow views not called generally. We are law that the to so required interpret but are rather inten- subject, be defeated. tion of into effect, will be carried testators

Case discharged.