Hudson v. Flood

• Decision Date: 28 June 1915
• Citation: 28 Del. 450,94 A. 760
• Court: Delaware Superior Court
• Parties: FRANCIS A. HUDSON, Caveator of the alleged last will and testament of LUVINA LAYTON, deceased, v. JOHN FLOOD and ANNIE FLOOD

94 A. 760

28 Del. 450

FRANCIS A. HUDSON, Caveator of the alleged last will and testament of LUVINA LAYTON, deceased,

v.

JOHN FLOOD and ANNIE FLOOD

Superior Court of Delaware, Sussex County

June 28, 1915

(April 6, 1915)

Daniel J. Layton Jr., for the proponent of the will.

Robert C. White and James M. Tunnell for the caveator.

Judges RICE and HEISEL siting.

Superior Court, Sussex County, June Term, 1915.

APPEAL (No. 27, February Term, 1915) from the Register of Wills for Sussex County, admitting to probate the will of Luvina Layton, deceased, against a caveat filed by Francis Hudson. Upon application of the parties the Superior Court directed the question of law involved to be heard by the Court in Banc. The opinion of the latter court being certified to the Superior Court, the decree of the Register was affirmed.

IN THE COURT IN BANC.

PENNEWILL C. J., BOYCE, CONRAD, RICE and HEISEL, J. J., sitting.

(June 28, 1915.)

STATEMENT.

In the will of the deceased, Annie Flood was named as a beneficiary.

The executors named were John Flood, husband of Annie Flood, and Francis Hudson, brother of the deceased.

The witnesses to the will are John Flood, one of the executors and Annie Flood, the beneficiary.

The case was argued before the Superior Court at the last February Term, but no decision was rendered, the court considering that the questions of law involved ought to be heard by the Court in Banc and directed them to be so heard.

The only question raised by the record is, whether the witness Annie Flood is a credible witness within the meaning of the Statute of Wills, the credibility of the other witness, under the law, not being questioned. The decree of the register sustained and the appeal dismissed.

PENNEWILL C. J., BOYCE, CONRAD, RICE and HEISEL, J. J., sitting.

OPINION

PENNEWILL, C. J., after stating the facts as above delivering the majority opinion of the court:

Under the law of this state, Revised Code of 1915, §§ 3241 and 3242:

"Every will, whether of personal or real estate, must be in writing and signed by the testator, or by some person subscribing the testator's name in his presence and by his express direction, and attested and subscribed in his presence by two or more credible witnesses, or it shall be void.

"A creditor of a testator may be a witness to his will, although it contain a provision for the payment of his debts. Also a person may be a witness to a will containing a devise, or bequest, to the trustees of the poor of either county, or to any person, or institution, for a public purpose, although he is a taxable for the support of the poor of said county, or for such purpose, and the taxes to which he is liable will, by means of such devise, or bequest, be diminished."

Said section 3241, commonly known as the statute of wills, is practically the same as that part of the English statute of frauds, 29 Charles II, which required a will of real estate to be signed and attested by credible witnesses.

The question, who was a credible person within the meaning of the statute of frauds, was raised and considered in England very soon after the enactment of the statute; and we may regard it as now settled by the decisions in this country as well as in England that the word "credible" as used in will statutes is synonymous with "competent" and is to be given the same meaning by the courts.

It is also well settled that the words "credible persons", as used in the statute mean persons competent to testify at the time of attestation. 1 Woerner, Am. Law Administration, § 41; Page on Wills, 191; 1 Underhill on Wills, 192; 40 Cyc. 1109; Haven v. Hilliard, 40 Mass. 10, 23 Pick. 10; Smith v. Goodell, 258 Ill. 145, 101 N.E. 255; Jones v. Larrabee, 47 Me. 474; Marston's Appeal, 79 Me. 25, 8 A. 87; Bruce v. Shuler, 108 Va. 670, 62 S.E. 973, 35 L. R. A. (N.S.) 686, 15 Ann. Cas. 887; Robinson v. Savage, 124 Ill. 266, 15 N.E. 850; Sutton v. Sutton, 5 Del. 459, 5 Harr. 459; Shaffer v. Corbett, 3 H. & McH. (Md.) 513, 532; Wyndham v. Chetwynd, 1 Burr 417; 4 Kent's Com. 496; In re Wheelock's Will, 76 Vt. 235, 56 A. 1013; Leitch v. Leitch, 114 Md. 336, 79 A. 600; 2 Blackstone, 378; 29 A. & E. (1st Ed.) 233; Holdfast v. Dowsing, 2 Str. 1253; 1 Jarman on Wills, 71.

In the case in 23 Pick. Chief Justice Shaw said:

"The word 'credible' * * * is used to designate a person entitled to be examined in a court of justice."

In Smith v. Goodell, in describing a "credible person" the court used this language:

"A credible witness to the execution of a will is one who, at the time of attesting the will, would be legally competent to testify in a court of justice to the facts which he attests by subscribing his name to the will."

Some of the courts in the above cases said the words mean:

"Such persons as are not legally disqualified from testifying in courts of justice by reason of mental incapacity, interest, the commission of crime or other cause that makes the witness incompetent, and are not used as descriptive of persons of good moral character or reputation."

Other courts have declared, that the words "credible persons" are superfluous and meaningless because under general law a witness must be "competent" in order to testify to any fact in a court of justice.

In a recent case in our own state, viz., In re Le Carpentier's Will, 91 A. 204, the Chancellor in discussing the word "credible" said:

"The statute of this state requires that there be two or more 'credible' witnesses to a will. It seems to be settled by uniform decisions that 'credible' is synonymous with 'competent'. The case of Sutton v. Sutton, 5 Del. 459, 5 Harr. 459, seems to have a different definition, and to make 'credible', synonymous with 'creditable', but it was not so there said respecting the testimony of an attesting witness."

In the Sutton case, the court, when charging the jury respecting the witness Jackson, were not construing the word "credible" as used in a will statute, but were speaking generally of the meaning of the word as applied to witnesses whose credibility is attacked, saying they are:

"Such as may be relied on for truth in reference to the matter they are called on to establish."

We do not regard this instruction of the court as having any bearing on the present question. It could not have had, because we must assume that the court were acquainted with the uniform decisions respecting the word "credible" in will statutes. It is so well settled that the word means competent, and nothing more, that it cannot be now regarded as a debatable question.

Under the common law a beneficiary under a will was not a credible person, and could not be an attesting witness, because of interest.

For that reason he was not competent to testify, but this rule of exclusion applied to interested persons offered as witnesses in all actions, and not to the proof of wills alone.

Such is the general rule in all jurisdictions unless changed by statute. 29 A. & E. (1st Ed.) 233.

One of the questions submitted to the court for determination is, whether this common-law rule is changed by the statute of this state passed in 1881, Revised Code of 1915, § 4212 (Laws 1881, c. 537), sometimes called the evidence or enabling act, and which provides as follows:

"No person shall be incompetent to testify in any civil action or proceeding whether at law or in equity, because he is a party to the record or interested in the event of the suit or matter to be determined: Provided, that in actions or proceedings by or against executors, administrators or guardians in which judgment or decree may be rendered for or against them, neither party shall be allowed to testify against the other as to any transaction with or statement by the testator, intestate or ward, unless called to testify thereto by the opposite party."

This act extends to all persons save one excepted class, and it is natural and logical to believe that if not intended to embrace attesting witnesses who have an interest in the will, the statute would have also excepted them.

It is admitted, that prior to the enactment of this statute, the rule of common law above referred to prevailed in this state.

Was the common-law rule changed by the enabling act?

It would be difficult to use language more comprehensive than the words of the act, "in any civil action or proceeding whether at law or in equity". The Legislature evidently thought the word "action" might not cover everything intended, and therefore added the more general term "proceeding", which is broad enough to embrace every matter respecting which a person might be called to testify.

Certainly the proof of a will, if not technically an action, is a proceeding within the meaning of the act, and any witness competent to give testimony in a court of justice at the time of attestation would be a credible person within the contemplation of the statute respecting wills.

We would have no doubt of this even in the absence of authority, because the language of the act is so clear there is no room for construction and no reason for doubt.

But the great weight of authority sustains the position the court have taken, and very few, if any, cases can be found to the contrary. Cases can be found in which the court deprecated that such is the law, and expressed the fear that because of it fraud might be easily and frequently perpetrated upon aged and weakminded testators. But even such courts are constrained to say that the Legislature and not the courts must provide the remedy for whatever evil or danger exists.

The court in Carlton v. Carlton, 40 N.H. 14, 17, commenting on the fact that attesting witnesses are placed around the testator to judge of his capacity and prevent fraud, said:

"But...