In re Trinitarian Congregational Church & Soc'y of Castine

• Decision Date: 04 March 1898
• Citation: 91 Me. 416,40 A. 325
• Parties: In re TRINITARIAN CONGREGATIONAL CHURCH & SOCIETY OF CASTINE.
• Court: Maine Supreme Court

40 A. 325

91 Me. 416

In re TRINITARIAN CONGREGATIONAL CHURCH & SOCIETY OF CASTINE.

Supreme Judicial Court of Maine.

March 4, 1898.

(Official.)

Appeal from probate court, Hancock county.

This was an appeal by the Trinitarian Congregational Church & Society of Castine from a decree of the judge of probate disallowing and refusing to admit to probate an instrument purporting to be the last will and testament of Mehitable S. Rogers, late of Castine, deceased. The case was submitted to the decision of the full court upon the following agreed statement of facts:

"First. That the following is the olograph of Mehitable S. Rogers, to wit:

"'In the name of God, amen.

"'I Mehitable S. Rogers, of Castine, Hancock county, Maine, impressed with the uncertainty of life, and desirous of making a just disposition of my property, do make and publish this, my last will and testament.

"'After paying my debts I may leave, and burial expenses, I appropriate $150 for fixing the lot in the cemetery and getting a monument for my father's family. I give and bequeath the following to Anstres R. Folsom, of Roxbury, Mass., $100, and my personal property, and to the Trinitarian Congregational Church and Society the remaining balance of my estate.

"'To be given the abovementioned $100 to Anstres R. Folsom, of Roxbury, Mass., and to the Trinitarian Congregational Society and Church, in one year from my decease. If Anstres R. Folsom, of Roxbury, Mass., decease previous to myself, Mehitable S. Rogers, I give and bequeath the same, viz. $100, and my personal property, to Agnes T. Hooper and Martha N. Hooper.

"'I appoint Charles H. Hooper as executor of this, my last will and testament.

"'Signed, sealed, and delivered by the said Mehitable S. Rogers as her last will and testament, in our presence, who in attestation thereof, in her presence and in presence of each other, hereto subscribe our names this day.

"'Oct. 5th, 1893.

"'Mehitable S. Rogers. [Seal.]

"'Agnes T. Hooper. [Seal.]

"'Ella J. Adams. [Seal.]

"'Lucy B. Parker. [Seal.]'

"Second. That the Agnes T. Hooper mentioned in the body of said olograph is the same person who appears as a witness thereto.

"Third. If, upon these agreed facts, the law court finds that said Agnes T. Hooper was not a legal and proper witness to said will, the appeal is to be dismissed, and the decree of the probate court affirmed.

"If, however, the law court should find that said Agnes T. Hooper was a legal and proper witness to said will, then the case is to be sent back to nisi phus for hearing upon the appeal, both sides to have all rights which they would have had if the case had not been thus sent to law court on this agreed statement.

"Fourth. That Anstres R. Folsom is the only heir at law of said Mehitable S. Rogers."

G. M. Warren, for appellant.

H. E. Hamlin, for Anstres R. Folsom.

STROUT, J. The question is whether Agues T. Hooper was a competent attesting witness to the will of Mehitable S. Rogers, there being only two other witnesses. The will contained a legacy of $100, "and my personal property," to Anstres R. Folsom. It then provided that "if Anstres R. Folsom * * * decease previous to myself, Mehitable S. Rogers, I give and bequeath the same, viz. $100, and my personal property, to Agnes T. Hooper and Martha N. Hooper."

St. 1821, c. 38, § 2, required a will "to be attested and subscribed in the presence of the testator by three credible witnesses." Section 8 of the same chapter provided that any devise or legacy to an attesting witness should be utterly void, and such person should be admitted as an attesting witness. This section was followed by sections 10 and 11, apparently unnecessary and inconsistent with section 8. By those sections it was provided that an attesting witness who was a legatee should be regarded as competent, if he released or refused the legacy upon tender thereof, or had been paid its amount before he was called to testify, or died in the lifetime of the testator, or before he had received or released the legacy.

In the Revision of 1841 (chapter 92) all these provisions were substantially retained, and a further provision added that "a mere charge on the lands of the devisor for the payment of his debts, shall not prevent any of his creditors whose debt is so charged, from being a competent witness." Under these statutes, a legatee might be an attesting witness, as by becoming such his legacy became void. Section 2 of the same chapter in the statute of 1841 provided that wills should be attested by "three credible witnesses, or the same shall be void. And if the witnesses are competent at the time of attestation, their subsequent incompetency shall, in no case, prevent the probate of the will, if if it be otherwise satisfactorily proved."

In 1856, the common-law rule, that excluded as incompetent as witnesses in civil suits all persons pecuniarily interested in its result, was, with certain exceptions not material here, abrogated; but the act provided that it should not apply to the attestation of wills. To them, the common-law rule remained applicable. St. 1856, c. 266.

In Revision 1857, c. 74, § 1, the witnesses were required to be "disinterested and credible." The provision in the statute of 1841 making void a legacy to an attesting witness was omitted, as also the provisions as to releasing or refusing a legacy. Under this statute, it was strenuously argued in Jones v. Larrabee, 47 Me. 476, that the word "disinterested," excluded as attesting witnesses all persons within the sixth degree of relationship. Although the court held otherwise, the legislature In 1859 (chapter 120, I 1), for the apparent purpose of removing a doubt, struck out the word "disinterested," and left the requirement, "three credible attesting witnesses, not beneficially interested under the provisions of the will."

The statute has not been materially changed since. In the Revision of 1883, mere redundancy was avoided, and the enactment now stands, "three credible attesting witnesses, not beneficially interested under said will." Rev. St. c. 74.

In all these various provisions of statute, it appears to have been the dominant purpose of the legislature that the witnesses before whom the testator publishes his will, and who by...