Belladin v. Gooley

• Decision Date: 28 May 1901
• Citation: 60 N.E. 706,157 Ind. 49
• Parties: BELLADIN v. GOOLEY.
• Court: Indiana Supreme Court

157 Ind. 49

60 N.E. 706

BELLADIN

v.GOOLEY.

Supreme Court of Indiana.

May 28, 1901.

Appeal from circuit court, St. Joseph county; Lucius Hubbard, Judge.

Action by Laura S. Belladin against David Gooley to contest the will of Lewis Gooley, deceased. From an order sustaining a demurrer to the complaint, plaintiff appeals. Reversed.Talbot & Talbot, for appellant. John E. Fisher and F. J. Lewis Meyer, for appellee.

MONKS, C. J.

Lewis Gooley, by his last will, gave all his property, real and personal, remaining after the payment of his debts and funeral expenses, to his brother, David Gooley. Said will was “attested and subscribed” by two witnesses, one the attorney who wrote the will, and the other Lidy Gooley, the wife of David Gooley, who was the sole beneficiary under the will. Appellant brought this action to contest said will, on the ground that the wife of David Gooley was not a competent witness to the same. A demurrer for want of facts was sustained to each paragraph, and this ruling of the court is assigned for error.

In this state it is provided by statute that “no will except a nuncupative will shall affect any estate, unless it be in writing, signed by the testator, or by some one in his presence by his consent, and attested and subscribed in his presence by two or more competent witnesses; and if the witnesses are competent at the time of attesting, their subsequent incompetency shall not prevent the probate thereof.” Section 2746, Burns' Rev. St. 1894 (section 2576, Rev. St. 1881, section 2576, Horner's Rev. St. 1897). An attesting witness is competent, under said section, if, at the time of such attestation, he is competent to testify in court to the facts which he attests. In re Holt's Will, 56 Minn. 33, 57 N. W. 219, 45 Am. St. Rep. 434, 22 L. R. A. 481, 483;Jenkins v. Dawes, 115 Mass. 601;Morrill v. Morrill, 53 Vt. 78, 38 Am. Rep. 659.

The question to be determined, therefore, is whether or not appellee's wife was a competent witness when she attested said will. A large number of the authorities upon the subject of subscribing witnesses and their competency are collected in the note to Stevens v. Leonard (Ind. Sup.) 77 Am. St. Rep. 459-469 (s. c. 56 N. E. 27). In this state, however, the question of the competency of such witness is to be determined by statute. Section 504, Burns' Rev. St. 1894 (section 496, Rev. St, 1881; section 496, Horner's Rev. St. 1897), makes all persons, whether parties to or interested in the suit, competent witnesses in a civil action or proceeding, except as otherwise provided in said act. One of the exceptions is that “in all suits by or against heirs or devisees, founded on contract with or a demand against the ancestor to obtain title to or possession of property, real or personal, of, or in the right of, such ancestor, or to affect the same in any manner, neither party to such suit is a competent witness as to any matter which occurred prior to the death of the ancestor.” Section 507, Burns' Rev. St. 1894 (section 499, Rev. St. 1881; section 499, Horner's Rev. St. 1897). This section has been held to apply to actions to contest wills. Lamb v. Lamb, 105 Ind. 456, 458, 459, 5 N. E. 171; Staser v. Hogan, 120 Ind. 207, 214, 21 N. E. 911, 22 N. E. 990; Burkhart v. Gladish, 123 Ind. 337, 345, 346, 24 N. E. 118;McDonald v. McDonald, 142 Ind. 55, 87, 88, 41 N. E. 336. These cases also hold that parties to an action to contest a will are not excluded from testifying respecting matters open to the observation of all the friends and acquaintances of the deceased, such as mental capacity of the testator, but that they are incompetent to testify concerning matters connected with the execution of the will, and all other matters not open to such observation. McDonald v. McDonald, 142 Ind. 87, 41 N. E. 336;Burkhart v. Gladish, 123 Ind. 346, 24 N. E. 118;Lamb v. Lamb, 105 Ind. 459, 5 N. E. 171. It is evident from said authorities that a devisee under a will is not a competent witness concerning matters connected with its execution. Section 509, Burns' Rev. St. 1894 (section 501, Rev. St. 1881; section 501, Horner's Rev. St. 1897), provides that “when the husband or wife is a party, and not a competent witness in his or her own behalf, the other shall also be excluded; except the husband shall be a competent witness in a suit for the seduction of the wife, but she shall not be competent.” Under said section and the authorities cited, it is clear that, when the husband or wife of...