175 Wis. 1 | Wis. | 1921
Lead Opinion
The following opinion was filed May 31, 1921:
This is an appeal from an order or decree of the county court of Racine county construing the will of Theodore W. Johnson, deceased. The case was here on a former appeal from an order admitting the will to probate, and is reported in 170 Wis. 436, 175 N. W. 917, to which reference may be had for facts supplemental to those which will appear in this opinion.
The will of Theodore Johnson constituted Mrs. L. C. Hahn the principal beneficiary. She was a witness to the will. The question involved on the former appeal was whether she could testify to the execution of the will. It was there held that she could. The question presented on this appeal is whether Mrs. Hahn is entitled to the bequest made to her by the terms of the will. The county court held that
There is no serious contention but the law as it existed at the time of the death of the testator is the law that governs as to the question whether Mrs. Hahn can take under the will.
“A will is ambulatory during the life of its maker. It is, in effect, reiterated as his testament at each moment of his life after its execution, including the last moment, and is governed by the law existing at the1 time when it takes effect, upon the testator’s death.” Will of Kopmeier, 113 Wis. 233 (89 N. W. 134) at p. 239.
This fact is mentioned at the outset because it is claimed that the statute which, concededly, controls in this case was amended during the interim between the execution of the will and the death of the testator. That statute is sec. 2284. Brior to the enactment of ch. 128, Laws 1905, that section provided as follows:
“All beneficial devises, legacies and gifts, whatsoever, made or given in any will to a subscribing witness thereto, shall be wholly void unless there be two other competent subscribing witnesses to the same; but a mere charge on the lands of the devisor for the payment of debts shall not preyent his creditors from being competent witnesses to his will.”
By ch. 128, Laws 1905, that section was amended by voiding gifts made to the husband or wife of a subscribing witness, as well as to the subscribing witness himself, and by dropping out the word “subscribing,” so that it now provides that such devises, legacies, and gifts “shall be wholly-void unless there be two other competent witnesses to the same.” As so amended the section now reads as follows:
“All beneficial devises, legacies and gifts whatsoever, made or given in any will to a subscribing witness thereto,*4 or to the husband or wife of a subscribing witness thereto, shall be wholly void unless there be two other competent witnesses to the same; but a mere charge on the lands of the devisor for the payment of debts shall not prevent his creditors from being competent witnesses to his will.”
It will be seen that the purpose of the statute is to void gifts, made to a witness to a will, so that a subscribing witness may be a competent witness and the will be established by the testimony of the subscribing witness, unless the will cannot be established without his testimony. That, at least, was clearly the purpose of the statute as it existed prior to the amendment of 1905. It is not seriously disputed that such is the present purpose of the statute, but it is contended that the bequest is saved to the attesting witness if there is another person who can testify to facts showing an execution of the will in conformity with the requirements of the statute. This contention is based on the theory that the amendment dropped out the word “subscribing” and hence the bequest is now saved to a subscribing witness if there is any other competent witness to the same.
It is said that it is not necessary that a competent witness be a subscribing- witness. Our first suggestion in response to this contention is that the phrase “witness to a will,” or any other written instrument, has a well settled meaning not only in common parlance but in the law-. A witness to a deed means a witness who has attached his signature to the deed. A witness to a will means one who has attested the will by subscribing his name thereto. Furthermore, the statute as it now exists requires two other competent witnesses to the will. We take it that the term “competent” as used in this connection means something more than a witness who is free from the many disqualifications visited upon persons by the common law; that is to say, it means not only a person who is under no disability to testify generally in a court of justice, but it means a person who is under no disability to give testimony which will establish the instrument as i the will and testament of the testator.
“The general rule is that the attesting witness to a written instrument is regarded as the person who must be called to prove its execution when he can be had, as it is said that the parties selected him to enable them to refer the execution of the document to him in case any question should arise over its execution. His evidence is regarded as the best evidence, and must be used when the execution is in dispute.”
This is a general rule applicable to all written documents which by law are required to be attested by subscribing witnesses. From the time when wills were required to be in writing and attested by subscribing witnesses it has been commonly understood that the will must be proved by the testimony of a subscribing witness if he could be produced, and that other or secondary evidence could be resorted to for that purpose only after a showing that the subscribing witness was dead, or beyond the jurisdiction of the court, or was. then non compos mentis.
Questions have arisen in some jurisdictions as to whether it was necessary to call all of the subscribing witnesses. Thornton’s Ex’rs v. Thornton’s Heirs, 39 Vt. 122; Denny
The only statute of this state bearing upon this question is sec. 3788, which provides that, if no person shall appear to contest the probate of a will, the court may in its discretion grant probate thereof on the testimony of one of the subscribing witnesses only, and that if none of the subscribing witnesses shall reside in this state at the time fixed for proving the will, or if one or more of them shall have gone to parts unknown, and the court shall be satisfied that such witness, after due diligence used, cannot be found, it may, in its discretion, admit the testimony of other witnesses to prove the sanity of the testator and the execution of the will and may admit proof of his handwriting and of the handwriting of the subscribing witness. This is the only modification of the common-law rule requiring all of the attesting witnesses to be called, to be found in the statutes of this state, and it is a clear recognition that the testimony of the attesting witnesses is indispensable to the establishment of a will if they can be produced at the hearing or trial.
This brings us to the question whether a mere bystander is a competent witness to a will.' In this case the subscribing witnesses, including Mrs. Hahn, testified at the trial upon the question whether the writing propounded was in fact testator’s will. Two or three bystanders also testified that
But it is asked, What was the purpose of the legislature
But whether we are correct in our assumption that the legislature dropped out the word “subscribing” because it was mere surplusage, we cannot ascribe to the legislature a purpose of working such a radical change in the law as would result from the construction contended for by appellant. In the first place, the inquiry suggests itself, how, and by whom, and when is it to be determined whether a mere bystander is in fact a witness to a will? Is he a witness to a will because, perchance, he sees a testator sign his will and no more ? Is he a witness to a will because he hears the testator declare the document to be his will and request the witnesses to sign the same, but does not see them sign ? Is
The amendment by which the word “subscribing” was dropped out of sec. 2284 made t\yo changes in that section. •It disqualified the wife or the husband of a subscribing witness, in addition to the witness himself, from taking
Upon these considerations we cannot impute to the legislature the purpose suggested by the appellant. We do not think it was the intention to change the law with reference to the probate of wills or the competency of witnesses in the least. We do not think it was the intention to designate as witnesses to a will a class of persons who had never before been so regarded since wills were required to be subscribed by attesting witnesses.
A case very similar to this arose in Iowa ( Will of Boycus, 23 Iowa, 354), where the same conclusion was reached.
By the Court. — Judgment affirmed.
Dissenting Opinion
The following opinion was filed June 14, 1921:
(dissenting). “All men are liars” sang King David; he said it in- haste but permitted it to stand.
Centuries afterwards and as early as the seventeenth century (1 Wigmore, Evidence, § 575), and at the time when juries first began to consider information as to the issues other than that which they themselves possessed as dwellers in the same neighborhood, this expression of the Hebrew poet was apparently crystallized into the common-law rule of evidence to the effect that a person financially interested in the issue of a lawsuit was unworthy of belief and therefore an incompetent witness.
This common-law rule excluding as incompetent any ia-terested person, whether a party or a mere witness, was to a great extent adopted as part of the law of this state. This rule, however, has been slowly relaxed by legislative enactments. Estate of Johnson, 170 Wis. 436 (175 N. W. 917), at p. 450. The only basis suggested for such statutes as are here involved, under which a person situated as is the appellant Mrs. Hahn can have objection raised as to her legal capacity to testify concerning the execution of or her right to take under a will, is this old common-law rule excluding as incompetent and unworthy of belief a person having a financial interest in the matter involved. Will of Lyon, 96 Wis. 339, 340, 71 N. W. 362; Will of Hoppe, 102 Wis. 54, 55, 78 N. W. 183.
It may safely be asserted that all the changes, either by statute or judicial decision, from territorial days to the time of the present decision, on the subject.of the admissibility of the evidence of one interested in the result, have been in the direction of relaxing and modifying this old common-law rule and permitting such matters to go to the credibility
It is held in substance by the majority opinion that the omission by ch. 128, Laws 1905, of the word “subscribing” in the phrase “shall be wholly void unless there be two other competent subscribing witnesses” as it appeared in sec. 2284, Stats., prior to that amendment, was either done inadvert-' ently or because deemed surplusage, or in any event that such omission was not a sufficient declaration of legislative intent to make a substantial change in the law on this point. I cannot concur in any such backhanded compliment to the mental processes of the legislature in this particular instance and for the following among other reasons:
There is a substantial difference between one who is a competent witness tO' the transaction involved in the making of a last will and one who- is a competent subscribing witness to the same. By the very language of the statute as it stood and now stands and from the very nature of things, no one can properly be a subscribing witness to- such a document who is not also a competent witness. But by no means does it follow that one who is a competent witness is necessarily only the one who also meets the definition of competent subscribing witness. The term “competent zvitness” describes the genus, the term “competent subscribing witness” defines the species; the former is the large circle, the latter the smaller and inclosed circle. That these two circles may often, from the veiy nature of the transaction involved, coincide, so far as contained numbers is concerned, can be readily seen, but that fortuitous coincidence is of no real weight in determining the question here presented.
If a testator desire to have his will admitted to probate
I think the distinction was clearly recognized by one who surely had a familiarity with the subject and especially in this state, in the expression by the late Mr. Chief Justice Cassoday in his work'on Wills, sec. 210:
“Although other persons besides those who subscribe to the will as witnesses may be competent to testify as to its execution, yet it should be remembered that subscribing witnesses have a special importance in all controversies over the execution of wills.”
In the state of Pennsylvania, for instance, from an early date and apparently up to the present moment, it has been held under a statute on this subject containing the following language: “shall be proved by the oaths or affirmations of two or more competent witnesses,” that such competent witnesses need not be subscribing witnesses. Frew v. Clarke, 80 Pa. St. 170, 179, decided as early as 1833. It was also therein declared that although one such competent witness was the sole beneficiary and to a legacy'of $75,000, his testimony was properly received.
In McClure v. Redman, 263 Pa. St. 405, 107 Atl. 25, decided in 1919, the existence of the doctrine was clearly recognized, and it was further held that, even with the pro-visión requiring two or more witnesses, the requirement
Manifestly, in the state of Pennsylvania at least, the use of the term “a witness to a will” would not imply that such witness was a subscribing witness, although much stress is laid in the majority opinion upon what is assumed to1 be the meaning of the term. It might be noted in passing, as to conveyances, that signing of witnesses is not essential to qualify one to1 testify as to facts showdng the passing of title; such formality of subscription is only necessary in order that the instrument may be recorded. Leinenkugel v. Kehl, 73 Wis. 238, 40 N. W. 683; Eadie v. Chambers, 172 Fed. 73, 24 L. R. A. n. s. 879, and note.
The making of a last will and testament, which is defined by Blackstone as “the legal declaration of a man’s intention, which he wills to be performed after his death,” is his act and one thing; the statutory formalities which are necessary in order to permit the court having proper jurisdiction to administer the property under such declaration is another and separate thing and subject entirely to legislative control.
This court has gone as far as any court in the land in declaring the substantial nature of the right existing in the living to make disposition of his property after death and that it is of such a nature that it cannot be taken away by the legislature. Nunnemacher v. State, 129 Wis. 190, 202, 108 N. W. 627.
The solemn duty resting upon the courts in this state to effectuate the testator’s lawfully expressed wishes irrespective of the desires of those remembered or unremembered in the document has been repeated so often as to become trite. Will of Dardis, 135 Wis. 457, 115 N. W. 332; Will of Rice, 150 Wis. 401, 405, 136 N. W. 956, 137 N. W. 778; Will of Ball, 153 Wis. 27, 141 N. W. 8; Will of Duncan, 154 Wis. 39, 48, 141 N. W. 1002; Schoenwetter v. Schoenwetter, 164 Wis. 131, 135, 159 N. W. 737; Estate of Staab, 166 Wis. 587, 590, 166 N. W. 326.
For convenience of comparison, that statute before and after the amendment is again here presented:
“All beneficial devises, legacies and gifts whatsoever, made or given in any will to a subscribing witness thereto, shall be wholly void unless there be two other competent subscribing witnesses to the same; but a mere charge on the lands of the devisor for the payment of debts shall not prevent his creditors from being competent witnesses to his will.”
“All beneficial devises, legacies and gifts whatsoever, made or given in any will to a subscribing witness thereto, (or to the husband or wife of a subscribing witness thereto), shall be wholly void unless there be two other, competent . . . witnesses to the same; but a mere charge on the lands of the devisor for the payment of debts shall not prevent his. creditors from being competent witnesses to his will.”
It is significant that the word “subscribing” as limiting the term “competent witness” appears twice in the statute before amendment; by the amendment it is stricken out once and again specifically inserted, so that the net result, the descriptive term “subscribing witness,” stares one in the face as prominently and as often after the amendment as before. If, as suggested in the majority opinion, the term was considered surplusage in the phrase where it was omitted, the legislative mind evidently did not consider it surplusage in the. clause in which it was left in the old statute and in the
No question can be raised but that, if the legislature had in so many words declared that they did intend that a gift should be held valid to one, a competent witness to the transaction involved in the making of a will, and who, at the request of the very testator, also subscribed the same to comply with legislative will, where there were others present just as conversant with what was said and done and whose testimony is available, the court would be bound to so hold. I can see no tremendous upheaval in the law of wills if such a conclusion were now upheld.
As yet neither constitution, statute, nor custom requires that the legislature should give any reasons for their amendments to existing statutes or their passage of new ones. No solemn declaration on their part is required as an explanation of changes made, for such, if given, might but add to the judicial labors.
If we view this question with the not unreasonable assumption that as a foundation of the legislative intent expressed in this amendment there was embodied the thought, as expressed by the late Mr. Chief Justice Cassoday, supra, and which is recognized as the rule elsewhere, that others than subscribing witnesses could be competent witnesses to testify in a court of justice as to the essential facts concerning what a testator said and did, and further that the legislative mind had become imbued with the lofty and often expressed declarations of this court as to the sanctity to be
Weight is attached in the majority opinion to the fact that the subscribing witnesses to such a document are required, in case of contest, to be first called and their testimony given or their absence satisfactorily explained.. This is entirely a matter of order of proof and has no bearing whatever upon the question of the competency of the witnesses. A person who participates in the making of a contract reduced to writing is no less a competent witness to the transaction because the rules of evidence provide that the document itself is the best evidence and must be first produced or its absence explained before oral testimony is taken as to its contents. The competency of such a witness is not at all dependent upon the production or nonproduction of the document. The same should be held in the instant situation. The mere fact that A: and B. are by certain rules of evidence required to be called as witnesses before C. can be permitted to testify has absolutely no bearing upon the question of the competency of C. under the other and independent rules of evidence. No authority is cited to- the effect that a test of competency of a witness is to be determined upon a rule which relates solely to the order of proof or of first or
A mere glance at the statutes and decisions of the different state jurisdictions shows that the requirements of formalities requisite for the probate of a will are as varied as the jurisdictions, and there are none in which such formalities are not constantly changed and without any formidable preambles in the amending statutes either. What is meat in one jurisdiction is poison in another. • *
In New York two attesting witnesses are require'd, each of whom shall sign his name as a witness at the end of the will at the request of the testator. They both, however, do not need to be present at the time of signing. Hoysradt v. Kingman, 22 N. Y. 372, 379.
In California, under a substantially similar statute, it was held that they must both be present. Estate of Emart, 175 Cal. 238, 165 Pac. 707, L. R. A. 1917F, 866.
Under our present statute, sec. 2282, the signing by the witnesses must be done when both are present. Will of Griffith, 165 Wis. 601, 608, 163 N. W. 138. Formerly under the same statute before amendment such subscribing in the presence of both witnesses was not required. Will of Smith, 52 Wis. 543, 547, 8 N. W. 616, 9 N. W. 665.
A substantial difference was recognized at common law and for a long period in many of the states of this country as to wills regarding real property and those regarding personal property, the latter not requiring the same formality as the former. A will that would be void as to real estate for want of proper execution might nevertheless be valid as to personal property. Lake v. Warner, 34 Conn. 483; Ex parte Henry, 24 Ala. 638. The .property here involved is substantially all personalty.
Undoubtedly the courts in this state would have to hold the same as to such foreign wills under sec. 2283, Stats., providing for recognition of wills executed outside of this state under the there required formalities, conditioned only that it be in, writing and subscribed by testator. The provision for subscribing witnesses is here* conspicuous by its absence.
In Children’s Aid Society v. Loveridge, 70 N. Y. 387, it was held that an executor to a will may nevertheless be a competent subscribing witness under a statute quite similar to the one before us. It would appear furthermore from the language of the decision in that case that other than subscribing witnesses who were present at its execution were sworn upon the hearing just as in the case at bar and their testimony in effect held admissible and sufficient to sustain the will. Page 392.
In Rugg v. Rugg, 83 N. Y. 592, 594, the testimony of the two subscribing witnesses created a doubt as to some of the facts essential to be shown for a proper execution of a will. To supply this defect the executor was held to be a competent witness to testify to the essential features so left fn doubt and the will held properly executed. The probate of a will should not be rejected because one of the subscribing witnesses testifies in contradiction to the other and against
These points are dwelt upon merely as indicating the vast variety of legislative and judicial views on the subject of • statutory formalities, their flexibility and the constant changes made; that no property rights are considered as invaded or the established order of things overthrown by such changes.
I think the judgment should be reversed and it be held that Mrs. Hahn, as designated beneficiary in the admitted will of Theodore W. Johnson, is entitled to take just as the testator therein declared she should take.
A motion for a rehearing was denied, with $25 costs, on September 23, 1921.