Harding v. Harding
| Decision Date | 15 May 1852 |
| Citation | 18 Pa. 340 |
| Parties | Harding <I>versus</I> Harding. |
| Court | Pennsylvania Supreme Court |
On the trial of an issue devisavit vel non, the Court below admitted evidence of the handwriting of John Harding, one of the subscribing witnesses, to establish the instrument in contest. This evidence was offered because he was "one of the parties taking the appeal" from the decree of the Register admitting the instrument to probate; and it was objected to on the ground that the witness was "a brother and devisee in the will." Evidence was also admitted of John Harding's acknowledgment that his name, placed as a subscribing witness, was his signature.
It does not appear by the bill of exceptions that the testator died without issue, or that the subscribing witness would receive, under the intestate law, a greater interest than that given by the instrument in dispute. The injustice likely to arise from the action of a Court of error, when it assumes the existence of facts not stated upon the record, or decides questions not presented for decision in the Court below, is so manifest as to need no illustration. The great question on which Lord MANSFIELD and Lord CAMDEN differed — whether a subscribing witness not competent at the time of attestation, could be rendered competent by matter subsequent — does not arise upon the present record. The reasoning of Lord CAMDEN in support of the principle, that the provisions and the policy of the statute required that the testator should be guarded from imposition by the presence of witnesses free from objection at the time of attestation, seems to have been adopted by an enlightened tribunal of a neighboring state: Hawes v. Humphrey, 9 Pick. 350.
In the case before us, John Harding was never competent. He is to be considered as if he had never been a subscribing witness: 6 Ser. & R. 223. The proof of his handwriting, whether derived from the testimony of the other subscribing witness, or from his own declarations, was therefore inadmissible. Secondary presupposes the existence of primary evidence, and is the light which is reflected after obstacles intervene which deprive us of the benefit of direct rays; but where no direct light ever existed, there can be none reflected.
If the proof of execution had been given...
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In re Dalbey's Estate
...Under the common law rule formerly in force in this state a devisee or legatee of a will was totally incompetent to testify. In Harding v. Harding, 18 Pa. 340, court held that the signature of a subscribing witness, who was a devisee, could not be proved in support of execution, since the d......
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Sharpless's Estate
...Pa. 631; Wilson v. Mitchell, 101 Pa. 505; Eddey's App., 109 Pa. 419; Herster v. Herster, 122 Pa. 264; Weigel v. Weigel, 5 W. 486; Harding v. Harding, 18 Pa. 340; 1 Williams on Executors, 350; Harrison v. Rowan, 3 Wash. C. C. 580; Vernon v. Kirk, 30 Pa. 218; Hoshauer v. Hoshauer, 26 Pa. 406;......