Smith v. Jones

• Citation: 68 Vt. 132,34 A. 424
• Court: United States State Supreme Court of Vermont
• Decision Date: 14 March 1896
• Parties: SMITH v. JONES et al.

34 A. 424

68 Vt. 132

SMITH

v. JONES et al.

Supreme Court of Vermont. Orange.

March 14, 1896.

Exceptions from Orange county court; John W. Rowell, Judge.

Proceedings between Lizzie P. Smith and Ezra Jones and others to probate the alleged will of Pauline A. Cabot. Heard upon an agreed statement of facts at the June term, 1895. To a judgment that the instrument be not admitted to probate, proponents except Affirmed.

Darling & Darling, for proponents.

Geo. M. Powers, for contestant.

ROSS, C. J. The single question presented for consideration is whether a husband, who is not a legatee, and who, by an antenuptial contract, has relinquished all right to any property of his wife, and to any and every part of her estate, was a competent witness to her will. If he was, her will is witnessed as required by Vt St. 1894, § 2349. If he was not, her will is not witnessed as required, and the judgment of the county court disallowing the proposed will was correct. The decision of this question depends upon whether the competency of the witness is to be determined as of the date of the execution of the proposed instrument, or as of the date when he is sworn to establish that the instrument was so executed that it is entitled to be probated. If to be determined as of the latter date, the husband would be competent to testify to any matter occurring during the existence of the marital relations, except such as come to him in marital confidence, or as would directly tend to disgrace or criminate his deceased wife. The testimony called for would not fall within the exceptions. French v. Ware, 65 Vt. 338, 26 Atl. 1096. She is not a party, in interest or otherwise, to the proceedings to establish the instrument as her will. Foster's Ex'rs v. Dickerson, 64 Vt. 233, 24 Atl. 253. If his competency is to be determined as of the date of the execution of the will, the husband was incompetent not because he was interested in the will, or in any of its provisions, but because he was the husband of the testatrix, and, because of that relation, incompetent to testify for or against her in any proceeding. Davis v. Dinwoody, 4 Term R. 678; Manchester v. Manchester, 24 Vt. 649; Smith v. Potter, 27 Vt 304; Seargent v. Seward, 31 Vt 509; Cram v. Cram, 33 Vt. 15; Carpenter v. Moore, 43 Vt. 392. The language used in Vt. St 1894, § 2349, "and attested and subscribed by three or more credible witnesses," implies that the subscribing witnesses must be both credible and competent at the time they attest the execution of the will. Credibility and competency are sometimes applied to a witness as if they were synonymous in meaning. Such use is not strictly correct Credibility relates to whether the witness is such as is entitled to credit or belief. It may not attach, by reason of extreme youth, idiocy, insanity, or, under our statutes, conviction of perjury. Competency relates...