Denny v. Pinney's Heirs
| Decision Date | 26 January 1888 |
| Parties | ANDREW E. DENNY, EX'R v. HEIRS OF HARRIET PINNEY |
| Court | Vermont Supreme Court |
MAY TERM, 1888
APPEAL from the probate of the will of Harriet Pinney. Trial by jury, September Term, 1886, POWERS, J., presiding. Verdict sustaining the will. Affirmed.
The judgment of the County Court is affirmed, and ordered to be certified to the Probate Court.
Frank Plumley and S. C. Shurtleff, for the contestants.
ROSS
I.
The testatrix and the attesting witnesses severally signed the will in the presence of each other. The testatrix did not personally say it was her will. Mr. Baker, who drew the will for her, in her presence announced to the witnesses that it was her will and requested them to sign it as witnesses. This was a sufficient publication of the will, and gave the witnesses full knowledge of the act they were performing. The act of the testatrix, in signing the alleged will, in the presence of the witnesses after they had been informed by Mr Baker that it was her will, and requested to sign it as such as well as her silence, after the proclamation by Mr. Baker, was an affirmance, by the testatrix, and an acquiescence in the announcement by Mr. Baker. It was all the publication required, as it fully informed the witnesses, with the testatrix's implied assent and approval, of the nature of the act they were asked to perform. Roberts v. Welch, 46 Vt. 164; Dean v. Dean, 27 Vt. 746.
II. It was not incumbent upon the proponent to produce the attesting witness Bartlett in court. He was beyond reach of process. The English practice adopted by this court requires the proponent only to proceed and examine such of the attesting witnesses as are within reach of process. Thornton v. Thornton, 39 Vt. 122. He must be within reach of process, and legally obtainable at the trial. It was no more the legal duty of the proponent to procure the deposition of such a witness, who resided beyond the reach of process, than it was the duty of the contestants; nor was it any more his duty to produce the deposition of such a witness, because he had an opportunity to take his deposition when the witness happened to be in the State, than if the witness remained all the time without the State, provided the proponent knew his residence. In neither case could he produce the witness upon the trial, and examine him. The practice here and in England, has never required the production of the deposition of such a witness. To make such a deposition of value the instrument proposed must be produced to the witness identified. It would be difficult and objectionable to do this. The proposed instrument is required to be deposited with the Probate Court, and, for proof before that court, is not within the control of the proponent without an order of the court, even if it is after the allowance of an appeal to the County Court. Besides, more or less danger attends the removal of a proposed will from the...
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