Peters v. Peters

• Decision Date: 06 May 1935
• Docket Number: No. 6313.,6313.
• Parties: PETERS et al. v. PETERS.
• Court: U.S. Court of Appeals — District of Columbia Circuit

64 App. DC 331, 78 F.2d 215 (1935)

PETERS et al. v. PETERS.

No. 6313.

United States Court of Appeals for the District of Columbia.

Argued April 1, 1935.

Decided May 6, 1935.

C. F. R. Ogilby and Richard E. Shands, both of Washington, D. C., for appellants.

Christopher B. Garnett, of Washington, D. C., for appellee.

Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, HITZ, and GRONER, Associate Justices.

GRONER, Associate Justice.

This is an appeal from an order admitting to record the will of Emmett Eugene Peters, after a caveat had been filed by two brothers and a sister of the decedent. The issue submitted to the jury was the following: "Was the said paper writing dated the 2nd day of April, 1917, purporting to be the last will and testament of Emmett Eugene Peters, deceased, executed and attested in due form, as required by law?"

To this query the jury answered, "yes." Only the two attesting witnesses were examined as to the execution of the will. One of these was a sister of testator, the other his niece. The former testified directly and positively to all the facts necessary in the execution of the will; the latter to all the necessary facts except the presence of testator when she and her aunt signed as witnesses.

The evidence shows that testator and his wife resided in Richmond, Va., where the will was executed in 1917.

On April 2 of that year testator and his wife made separate wills in favor of each other. The husband devised and bequeathed to his wife, if she should survive him, all of his property in fee simple; if she predeceased him, then to his sister, Lynwood Peters; the wife devised and bequeathed to her husband all of her property, should he survive her; and, likewise, if he should not, to his sister, Lynwood Peters. At the time of the execution of the wills, the testator and his wife were residing with his mother and his unmarried sister, Lynwood. Mrs. Peters died two years prior to the death of her husband, and her will was probated in 1931 and her husband took under it. The two wills were substantially identical and were attested at the same time by the same witnesses.

From what has been said, it will be seen that the only issue at the trial was whether the testator was present when the attesting witnesses signed. Mrs. Eanes (the niece — and the daughter of one of the caveators) testified that at the time she signed the paper as a witness she was nearly 17 years of age; that she had graduated from the grammar schools in Richmond, and was then a student in the high school; that Mrs. Peters (her aunt) asked her to sign both wills, and that Mr. Peters (testator) was not then present and she could not remember whether his signature was then on the paper writing. Interrogated as to the events preceding the signing, she said: "I was asked to sign by my aunt and my uncle and he said about my age and they said it was perfectly all right." When her attention was called to her statement that she was asked to sign by her aunt and her uncle, she corrected her testimony and explained, "I meant my two aunts when I said uncle." In a later part of her testimony, she made another correction. She had already stated that, although she knew she was signing her uncle's will as a witness, she did not know whether his signature was written on the paper when she signed it. Subsequently she stated that her uncle's signature was not on the will when she signed it, and that there was no signature above hers and the other witness.

We have, therefore, here a case in which one of the witnesses testifies under oath to all the circumstances required for the admission of the will to probate. The other repudiates the attestation clause and denies that the testator was present when the witnesses signed; and this question of fact the jury decided in favor of the validity of the will. In view of this and of the order of the court approving and confirming the verdict, it is only necessary to determine if, in the trial, there was prejudicial error, either in the admission or rejection of evidence or in the instructions of the court to the jury. We are satisfied there was no error in either respect.

Eight assignments are pressed. Number one is, "The court erred in striking the second allegation from the caveat filed herein." This allegation was: "The said deceased did not, at the time of making the subscription at the end of said paper writing, declare the said paper writing to be the last will and testament of him the said Emmett Eugene Peters."

The Code of the District of Columbia provides that all wills and testaments shall be in writing and signed by the testator, or by some other person in his presence and by his express directions, and shall be attested and subscribed in the presence of the testator by at least two credible witnesses (D. C. Code 1929, title 29, § 23). Appellants insist that the words "attested and subscribed" indicate different things — that to attest means to bear witness, to know that the paper which the witness signs is a will and is published and declared as such; while to subscribe the paper is only to write on the paper the name of the witness for the purpose of identification. Counsel say that, granted it is not necessary that the testator formally declare the instrument to be his will, nevertheless there must be some conduct on his part to apprise the witnesses that the instrument is a will, for otherwise there can be no attestation within the meaning of the statute. It is perhaps enough to say as to this that we have already held, in construing the District of Columbia statute, that it is not necessary to the effectiveness of the acknowledgment or the attestation that the witness know the nature of the instrument produced and submitted for his attestation. In re Porter's Will, 9 Mackey, 493, 503; Notes v. Doyle, 32 App. D. C. 413, 418.

But we need not in this case invoke this rule, for here there can be no real contention — in view of the evidence to which we shall refer — that both attesting witnesses were not informed that the paper writing which they signed as witnesses was Peters' will. The niece, on whom appellants wholly rely, states specifically that she knew that she was signing Peters' will as a witness, though she also states that Peters was not present. The truth of this statement, therefore, was the vital point on which the case turned, and the trial court, in submitting that issue, specifically called attention to the contradictory evidence of the two subscribing witnesses and directed the jury to base their verdict upon their finding on that question. If both witnesses signed in the presence of the testator, obviously they acted on the request of testator to witness his will. We think, therefore, there is no merit in the assignment.

Number two is that the court erred in striking the seventh allegation from the caveat. This allegation was: "The attesting witness, Mary C. Peters (now Mary Peters Eanes), was at the time she subscribed her name an infant niece of said deceased, and her act in signing as an attesting witness was utterly void and of no effect."

The ground of this is that the niece was both an infant and a possible heir of decedent.

It is not contended that an heir at law, not mentioned in the will, is not a competent witness to attest the will, but it is insisted that, because here there is involved a combination of infancy and adverse interest, the witness was incompetent. The theory is that because, under some circumstances, the niece might have been the heir of the uncle, she was attesting against interest, and, being an infant, she could not waive or destroy the beneficial interest which the right of blood created in her behalf; but we think there is nothing in the point. The interest or expectancy which will disqualify an attesting witness must be something more than the mere hope of succession to the property of another. An interest remote, contingent, and uncertain, is not enough. A residuary legatee whose interest is very remote is a competent witness. Galbraith's Lessee v. Scott, 2 Dall. 95, 1 L. Ed. 304; Lord v. Lord, 58 N. H. 7, 42 Am. Rep. 565; Warren v. Baxter, 48 Me. 193; In re Hoppe, 102 Wis. 54, 78 N. W. 183; Maxwell v. Hill, 89 Tenn. 584, 585, 15 S. W. 253.

In this case, when the niece subscribed and when the will was offered for probate, her father was still alive, and she had...