In re Nahum F. Wheelock's Will
| Decision Date | 13 February 1904 |
| Citation | 56 A. 1013,76 Vt. 235 |
| Parties | IN RE NAHUM F. WHEELOCK'S WILL |
| Court | Vermont Supreme Court |
October Term, 1903.
APPEAL FROM A DECREE OF THE PROBATE COURT refusing to establish an instrument as the will of Nahum F. Wheelock. Ella A. Burgess proponent. Loie Smith and Mabel Lifinaman, contestants.
Judgment reversed, and cause remanded.
Batchelder & Bates and W. B. Sheldon for the contestants.
Present ROWELL, C. J., TYLER, START, WATSON, and STAFFORD, JJ.
Under exception by the contestants the proponent, a special and residuary legatee under the will, was allowed to testify (in contradiction of the testimony of the attesting witnesses), that at the time the will was executed, one of the attesting witnesses in the presence of the others and when looking at the will, said "Nahum's name is on the will and we never saw him put it there," and that then he said to the testator, "Is this your will and is this your signature?" To which the testator answered "Yes, sir," and that then the attesting witness put his name on the will.
It is argued that to allow a legatee to testify to the execution of the will is improper as against public policy. At common law in the probating of a will a legatee thereunder was incompetent to testify. This, however, was solely on the ground of pecuniary interest in the outcome of the action. 1 Underhill on Wills, § 192; 4 Kent's Com. (11th Ed.) 598.
Since such disqualification has been removed by statute it is no more against public policy to allow a legatee to testify as a common witness on all questions arising in the probation of a will than it is to allow any other person interested in the result of a suit to give testimony therein. In either case the only reason why it could be against public policy is the interest of the witness, and that ground is no longer available.
In Foster's Exrs. v. Dickerson, 64 Vt 233, 24 A. 253, subject to contestants' objection and exception, one of the legatees under the will was permitted to testify on behalf of the proponents on all the material issues in the case. The objection made was that the legatee was a party to the issue raised by the pleadings and on trial and that the deceased testatrix was the other party thereto, and that consequently the witness was not competent by reason of the provisions of R. L. 1002, 1003. The witness was held to be competent. In Kentucky, where they have a statute removing disqualification because of interest, it has been held that thereby all litigants in this kind of an action are put on an equal basis as witnesses, and that a devisee may testify generally in the probating of a will. Williams' v. Williams, 90 Ky. 28, 13 S.W. 250. See also Martin v. McAdams, 87 Tex. 225, 27 S.W. 255.
The exceptions state that there was no evidence of any special or marked change in the testator's mental condition or characteristics at any particular period of his life after he attained the ordinary age of maturity. His capacity under consideration was therefore such as he had always naturally possessed since arriving at that age. Any evidence tending to show his mental condition and natural capacity within that period or within a reasonable time before, as he was approaching it, had a tendency to show his capacity at the time the will was executed. All the evidence received on that question, including the letters written by the testator, had such tendency, and there was no error in its reception. Foster's Exrs. v. Dickerson, before cited. Some if not all of the letters were also admissible as evidence of the testator's knowledge of the contents of the will. McAulay v. Western Vt. R. R. Co., 33 Vt. 311.
It appears that the testator was under guardianship as non compos at the time the will was executed. The contestants requested the Court to charge in short that the adjudication of the Probate Court in this regard and the appointment of the guardian was prima facie evidence of the fact that the testator was non compos and incapable of taking care of himself and property at the time of the execution of the will. Upon this...
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