Hitchcock v. Shaw

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: LATHROP
• Citation: Hitchcock v. Shaw, 160 Mass. 140, 35 N.E. 671 (Mass. 1893)
• Decision Date: 28 November 1893
• Parties: HITCHCOCK v. SHAW.

160 Mass. 140

35 N.E. 671

HITCHCOCK

v.SHAW.

Supreme Judicial Court of Massachusetts, Hampden.

Nov. 28, 1893.

Appeal from supreme judicial court, Hampden county.

Proceedings by George M. Hitchcock, executor, to admit to probate the last will and testament of Ursula J. Shaw, deceased. The probate was contested by William H. Shaw. The probate court admitted the will, and the decree was affirmed by a single justice of the supreme judicial court. Contestant appeals to the full court. Affirmed.

Thomas G. Kent and William H. Kelley, for appellant.

Charles L. Long and Ralph W. Ellis, for appellee.

LATHROP, J.

This is an appeal from a decree of a single justice of this court, affirming a decree of a judge of the probate court, admitting to probate an instrument purporting to be the last will and testament of Ursula J. Shaw. This instrument, after mentioning several legacies, directs that the residue of the estate shall be divided into two equal parts, and provides that one part shall constitute the “Shaw Fund,” and proceeds as follows: “Which fund I give and bequeath to the town of Brimfield, in Hampden county, in the state of Massachusetts, the principal thereof to be never diminished, but the interest thereof to be used each and every year in the purchase of books for the town library. If for any cause the town of Brimfield cannot, by law, take this legacy, then I give it to my executor in trust forever, with power to perpetuate the trust, but for the uses and purposes of increasing and adding to the town library of good and useful books.” This instrument was signed by the testatrix and by three witnesses. The only objection to its admission to probate which has been argued before us is that one of the witnesses, at the time of the attestation of the instrument, was an inhabitant of and a taxpayer in the town of Brimfield, having real estate valued at about $2,500. The residue of the estate of the testatrix will be about $5,000, and the valuation of Brimfield is about $500,000. At the time of the execution of the instrument, a town library was maintained by said town for the use of all its inhabitants, and the money received from the “dog fund,” so called, was usually appropriated therefor. See Pub.St. c. 102, § 107. Section 10, Pub.St. c. 40, provides: “Any town may at a legal meeting grant and vote money for the establishment, maintenance, or increase of a public library therein, and for erecting or providing suitable buildings or rooms therefor; and may receive, hold and manage any devise, bequest, or donation for the establishment, increase, or maintenance of any such library.” As the town may take under this bequest, the contingency provided for by the last part of the residuary clause does not arise; and the single question is whether the witness has such an interest that he cannot be considered a competent witness. If the answer is in the affirmative, the will is of no effect, under Pub.St. c. 127, §§ 1, 7.

The provision of Pub.St. c. 169, § 18, that no person of sufficient understanding shall be excluded from giving evidence as a witness, by the express provision of section 21 does not apply to the attesting witnesses to a will. The competency of such witnesses is to be determined by the rules of the common law. Sparhawk v. Sparhawk, 10 Allen, 155;Sullivan v. Sullivan, 106 Mass. 474. By these rules, to disqualify a witness, his interest “must be a present, vested interest, and not uncertain and contingent; and, where the interest is of a doubtful nature, the objection goes to the credit, and not to the competency, of the witness.” Wilde, J., in Hawes v. Humphrey, 9 Pick. 357. In the case last cited, a large estate was given by will to trustees for the use and benefit of the inhabitants of South...