In re Johnson's Will

• Decision Date: 14 June 1921
• Citation: 183 N.W. 888,175 Wis. 1
• Parties: IN RE JOHNSON'S WILL.
• Court: Wisconsin Supreme Court

175 Wis. 1

183 N.W. 888

IN RE JOHNSON'S WILL.^a1

Supreme Court of Wisconsin.

May 31, 1921.

Dissenting Opinion June 14, 1921.

Appeal from Racine County Court; Michael S. Sheridan, Judge.

Proceeding to construe the will of Theodore W. Johnson, deceased. From a judgment holding a devise and legacy to a subscribing witness void, the witness appeals. Affirmed.

Eschweiler and Rosenberry, JJ., dissenting.Wallace Ingalls and Simmons & Walker, all of Racine, for appellant.

McCulloch, McCulloch & Dunbar, of Chicago, Ill., and Hand & Quinn, Thompson, Myers & Kearney, and Thomas M. Kearney, Jr., guardian ad litem, all of Racine, for respondents.

OWEN, J.

This is an appeal from an order or decree of the county court of Racine county construing the will of Theodore W. Johnson, deceased. The case was here on a former appeal from an order admitting the will to probate, and is reported in 170 Wis. 436, 175 N. W. 917, to which reference may be had for facts supplemental to those which will appear in this opinion.

The will of Theodore Johnson constituted Mrs. L. C. Hahn the principal beneficiary. She was a witness to the will. The question involved on the former appeal was whether she could testify to the execution of the will. It was there held that she could. The question presented on this appeal is whether Mrs. Hahn is entitled to the bequest made to her by the terms of the will. The county court held that the devise and legacy to the said L. C. Hahn was and is void, because she is a subscribing witness to the will, and said will is not attested or subscribed by two other competent witnesses.

[1] There is no serious contention but the law as it existed at the time of the death of the testator is the law that governs as to the question whether Mrs. Hahn can take under the will.

“A will is ambulatory during the life of its maker. It is, in effect, reiterated as his testament at each moment of his life after its execution, including the last moment, and is governed by the law existing at the time when it takes effect, upon the testator's death.” In re Will of Kopmeier, 113 Wis. 233, at page 239, 89 N. W. 134, at page 136.

[2] This fact is mentioned at the outset because it is claimed that the statute which concededly controls in this case was amended during the interim between the execution of the will and the death of the testator. That statute is section 2284. Prior to the enactment of chapter 128, Laws of 1905, that section provided as follows:

“All beneficial devises, legacies and gifts whatsoever, made or given in any will to a subscribing witness thereto, shall be wholly void unless there be two other competent subscribing witnesses to the same; but a mere charge on the lands of the devisor for the payment of debts shall not prevent his creditors from being competent witnesses to his will.”

By chapter 128 of the Laws of 1905 that section was amended by voiding gifts made to the husband or wife of a subscribing witness, as well as to the subscribing witness himself, and by dropping out the word “subscribing,” so that it now provides that such devises, legacies, and gifts “shall be void unless there be two other competent witnesses to the same.” As so amended, the section now reads as follows:

“All beneficial devises, legacies and gifts whatsoever, made or given in any will to a subscribing witness thereto, or to the husband or wife of a subscribing witness thereto, shall be wholly void unless there be two other competent witnesses to the same; but a mere charge on the lands of the devisor for the payment of debts shall not prevent his creditors from being competent witnesses to his will.”

It will be seen that the purpose of the statute is to void gifts made to a witness to a will, so that a subscribing witness may be a competent witness, and the will be established by the testimony of the subscribing witness, unless the will cannot be established without his testimony. That, at least, was clearly the purpose of the statute as it existed prior to the amendment of 1905. It is not seriously disputed that such is the present purpose of the statute, but it is contended that the bequest is saved to the attesting witness if there is another person who can testify to facts showing an execution of the will in conformity with the requirements of the statute. This contention is based on the theory that the amendment dropped out the word “subscribing,” and hence the bequest is now saved to a subscribing witness if there is any other competent witness to the same.

It is said that it is not necessary that a competent witness be a subscribing witness. Our first suggestion in response to this contention is that the phrase “witness to a will,” or any other written instrument, has a well-settled meaning not only in common parlance, but in the law. A witness to a deed means a witness who has attached his signature to the deed. A witness to a will means one who has attested the will by subscribing his name thereto. Furthermore, the statute, as it now exists, requires two other competent witnesses to the will. We take it that the term “competent” as used in this connection means something more than a witness who is free from the many disqualifications visited upon persons by the common law; that is to say, it means not only a person who is under no disability to testify generally in a court or justice, but it means a person who is under no disability to give testimony which will establish the instrument as the will and testament of the testator.

[3] It has been the ruling of courts ever since the statute of frauds required certain instruments to be in writing and signed in the presence of witnesses that the testimony of the subscribing witnesses constituted primary evidence of the execution thereof by the parties bound thereby, and that no other evidence of such fact could be given until the person seeking to establish the instrument demonstrated his inability to produce the subscribing witnesses because of their death, their absence from the jurisdiction of the court, or that they were non compos mentis. It has been universally held that until such showing has been made on the part of him who seeks to establish the instrument secondary evidence could not be introduced to show the fact of execution. Wigmore on Evidence, § 1287 et seq., and note to Garrett v. Hanshue, 35 L. R. A. 321, where the general rule upon this subject is summoned up as follows:

“The general rule is that the attesting witness to a written instrument is regarded as the person who must be called to prove its execution when he can be had, as it is said that the parties selected him to enable them to refer the execution of the document to him in any case any question should arise over its execution. His evidence is regarded as the best evidence, and must be used when the execution is in dispute.”

This is a general rule applicable to all written documents which by law are required to be attested by subscribing witnesses. From the time when wills were required to be in writing and attested by subscribing witnesses it has been commonly understood that the will must be proved by the testimony of a subscribing witness if he could be produced, and that other or secondary evidence could be resorted to for that purpose only after a showing that the subscribing witness was dead, or beyond the jurisdiction of the court, or was then non compos mentis.

Questions have arisen in some jurisdictions as to whether it was necessary to call all of the subscribing witnesses. Thornton's Executors v. Thornton's Heirs, 39 Vt. 122;Denny v. Pinney, 60 Vt. 526, 12 Atl. 108;Chase v. Lincoln, 3 Mass. 236. But it has never been doubted that the production of some of the subscribing witnesses was necessary if their presence in court could be secured. In the chancery courts of England it was held that all subscribing witnesses must be produced. As that was the only court which could by its decree establish a will, that doctrine has been held to be the common law of this country; and, except where modified by statute, the law is that all of the subscribing witnesses to a will must be produced unless the impossibility of producing them is made to appear. Thornton's Executors v. Thornton's Heirs, supra; Redfield on Wills, pp. 34 to 39.

The only statute of this state bearing upon this question is section 3788, which provides that, if no person shall appear to contest the probate of a will, the court may in its discretion grant probate thereof on the testimony of one of the subscribing witnesses only, and that, if none of the subscribing witnesses shall reside in this state at the time fixed for proving the will, or if one or more of them shall have gone to parts unknown, and the court shall be satisfied that such witness, after due diligence used, cannot be found, it may, in its discretion, admit the testimony of other witnesses to prove the sanity of the testator and the execution of the will, and may admit proof of his handwriting and of the handwriting of the subscribing witness. This is the only modification of the common-law rule requiring all of the attesting witnesses to be called to be found in the statutes of this state, and it is a clear recognition that the testimony of the attesting witnesses is indispensable to the establishment of a will if they can be produced at the hearing or trial.

This brings us to the question whether a mere bystander is a competent witness to a will. In this case the subscribing witnesses, including Mrs. Hahn, testified at the trial upon the question whether the writing propounded was in fact testator's will. Two or three bystanders also testified that they were present at the time the will was signed, and testified to a number, if not all, of the facts required by statute for the legal execution of a will. Now it is said that these bystanders constituted competent witnesses to the will, by reason of which fact there were two other competent...