In re Wheelock's Will

Decision Date13 February 1904
Citation76 Vt. 235,56 A. 1013
CourtVermont Supreme Court
PartiesIn re WHEELOCK'S WILL.

Exceptions from Bennington County Court; Munson, Judge.

In the matter of Nahum F. Wheelock's will. Judgment was against contestants, and they bring exceptions. Reversed.

Argued before ROWELL, C. J., and TYLER, START, WATSON, and STAFFORD, JJ.

Barber & Darling, F. C. Archibald, and Waterman & Martin, for proponent. Batchelder & Bates and W. B. Sheldon, for contestants.

WATSON, J. 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 Underbill 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 Ex'rs v. Dickerson, & Vt 233, 24 Atl. 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 Rev. Laws 1880, §§ 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' Ex'r 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 (he testator's mental condition or characteristics at any particular period of his life after he attained the ordinary age of matur ity. 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 Ex'rs v. Dickerson. before cited. Some, if not all, of the letters were also admissible as evidence of the tes tator's knowledge of the contents of the will. McAulay v. Western Vt. R. R. Co., 33 Vt 311, 78 Am. Dec. 627.

It appears that the testator was under guardianship...

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