Needham v. Borden (In re Holt's Will)

• Decision Date: 29 December 1893
• Citation: 56 Minn. 33,57 N.W. 219
• Parties: IN RE HOLT'S WILL. NEEDHAM ET AL. v. BORDEN ET AL.
• Court: Minnesota Supreme Court

56 Minn. 33

57 N.W. 219

IN RE HOLT'S WILL.NEEDHAM ET AL.

v.BORDEN ET AL.

Supreme Court of Minnesota.

Dec. 29, 1893.

(Syllabus by the Court.)

1. Attesting witnesses to a will must be such as are competent at the date of attestation, and, if then competent, their subsequent incompetency, from whatever cause, will not prevent the probate of the will.

2. The rule of competency in such cases, in this state, is that defined by the statute. Gen. St. 1878, c. 73, §§ 6, 7.

3. A married person is not to be deemed an incompetent attesting witness at the time of the execution of a will, simply because the husband or wife of such person is a beneficiary under the will.

4. And the question of incompetency in such case can only arise subsequently on the probate of the will, upon his or her examination as a witness, and then only in the single contingency that such beneficiary becomes a contestant, and does not then consent to the examination of the witness.

5. The statute makes void a legacy to an attesting witness. But this provision does not, under the laws of this state, apply to the husband or wife of such witness. Neither has any present direct or certain interest in a legacy to the other.

Appeal from district court, Dakota county; Crosby, Judge.

To the petition of Georgiana Needham for probate of the will of Julia C. Holt, deceased, Lizzie Borden and others instituted a contest, and from an adverse judgment contestants appeal. Affirmed.

Jay W. Crane, for appellants.

Stringer & Seymour, for respondents.

VANDERBURGH, J.

The will in question here contains a legacy to Georgiana Needham, estimated by the testator at about $400, and it was attested by two witnesses, one of which was E. Z. Needham, who is and was at the time of such attestation the husband of Georgiana. Mrs. Needham is the proponent of the will, and in the probate court objection was made by the contestants, appellants here, to the allowance and probate of the will on the ground that the husband of the proponent E.Z. Needham was not a competent witness to the will. The action of the probate court, allowing the will, having been affirmed by the district court, the case is brought here on appeal from the judgment of the last-named court.

1. The first question presented involves the competency of the attesting witness E. Z. Needham. Undoubtedly he must have been a competent witness at the time of the execution of the will. This is the established doctrine of the common-law authorities, from the case of Holdfast v. Dowsing, 2 Strange, 1253, down to the present time, (1 Redf. Wills, 253; 2 Greenl. Ev. par. 691; Morrill v. Morrill, 53 Vt. 78;) and it is clearly recognized in our statute, (Probate Code, c. 2, § 19,) which requires that a will shall be attested and subscribed in the testator's presence by two or more competent witnesses. But, if competent at the time of the execution of the will, their subsequent incompetency, from whatever cause it arises, shall not prevent the probate and allowance of the will, if it is otherwise satisfactorily proven. The appellants, however, contend that the attesting witnesses must be such as would be competent under the common-law rule, and that they are impliedly not included in the definition of “witness,” (Gen. St. c. 73, § 6,) because their competency is to be determined as of the time of the attestation, and not as of the time when they may be called to testify on the probate of the will. But this construction cannot be upheld. The cases from Massachusetts are not in point, because there the statutes removing the objection to the competency of witnesses on the ground of interest and of the relation of husband and wife are expressly declared not to apply to attesting witnesses to a will. Sullivan v. Sullivan, 106 Mass. 478. The question of the competency of such witnesses in this state is determined by the statute. Gen. St. c. 73, §§ 6, 7, 9, 10. An attesting witness is competent, if he be one who would at the same time be competent to testify in court to the facts which he attests; and so the courts hold. Thus in Jenkins v. Dawes, 115 Mass. 601, an attesting witness is declared to be one who at the time of the attestation would be competent to testify; and in Morrill v. Morrill, 53 Vt. 78, “competency to testify” must exist at the time of the attestation. The attestation contemplated the subsequent testimony to the facts attested when the will should be proved. The incompetency of the husband or wife to testify where either was an interested party at the common law arose out of the unity of interest and of personal relations. This unity of interest may be removed, and yet, owing to the unity and confidential nature of their personal relations, the common-law rule in respect to competency remain, on grounds of public policy. Lucas v. Brooks, 18 Wall. 453;Giddings v. Turgeon, 58 Vt....