Stewart v. Harriman

• Decision Date: 13 August 1875
• Citation: 56 N.H. 25
• Parties: Stewart v. Harriman.
• Court: New Hampshire Supreme Court

56 N.H. 25

Stewart v. Harriman.

Supreme Court of New Hampshire

August 13, 1875

Probate of will---Appeal---Attestation.

The statute of July 2, 1822, provided, that in case any will should be proved without notice to the parties interested any party interested should be entitled to have the probate re‰xamined, on petition presented to the judge of probate &c., with this proviso: "Provided, that no such application shall be sustained unless preferred within one year from the time of the probate, nor if an appeal from such probate has been prosecuted before the superior court." By Gen. Stats., ch. 175, sec. 7,---which is the same as in the Revised Statutes of 1842,---it is provided that "Any party interested may have the probate of any will which has been proved without notice re‰xamined, and the will proved in solemn form before the court of probate, at any time within one year of such probate, if no appeal from such probate has been prosecuted before the supreme court." Held,

that this change in the language did not change the meaning of the statute, and that the petition would be in season if filed within one year from the time of the probate in common form.

The attesting witnesses to a will must be competent at the time of attestation.

The executor named in the will, as also his wife, is a competent attesting witness, if he takes no beneficial interest under it.

The fees and commissions to which an executor is by law entitled in this state, do not constitute such a beneficial interest as to render him or his wife incompetent to attest the execution of a will FROM THE MERRIMACK PROBATE COURT

For the purpose of raising certain questions of law only, the following facts were agreed, viz.,---This case is an appeal from the decree of the judge of probate of said county of Merrimack, proving and approving a certain paper as the last will of Francis Davis, late of Warner, in said county deceased. The said testator died on August 3, 1872, and said instrument was proved in common form as the last will of said Francis Davis, at a probate court, held in and for said county, at Concord, August 27, 1872.

A petition, bearing date August 9, 1873, of Judith H. Stewart, the only child and sole heir-at-law of said testator, for the probate of said will in solemn form, was filed on said August 9, 1873, in the probate court of said county; and on August 12, 1873, a citation in due form of law was duly issued for a hearing on said petition, at a probate court to be holden at Concord, on the fourth Tuesday of September, 1873.

At the hearing upon said petition, counsel for the executor appeared specially, and objected to the probate in solemn form, for the reason that more than one year had elapsed since the probate of the same in common form, and that the validity of said will could not now be questioned. Said instrument was approved and allowed, by said court, as the last will of said Francis Davis. One of the three attesting witnesses of said instrument was Mary A. Harriman, who was, at the date of the execution thereof, and now is, the wife of said Henry H. Harriman, who wrote said instrument, and who is named therein as executor, and who has accepted said office and trusts, and had been duly appointed and qualified in respect thereto, and was, at the date of such probate in solemn form, and is, acting in such capacities. A copy of said instrument, purporting to be the said last will of said testator, is made a part of this case, and may be referred to in the argument.

The said Judith H. Stewart was, on August 27, 1872, has since that date been, and now is, a married woman, that is to say, the wife of Leonard Stewart of said Warner.

Hawthorne & Greene, Mugridge, and Tappan, for the appellant.

Eastman, Page & Albin (with whom were Sargent & Chase), for the appellee

CUSHING C. J

It is contended by the appellee, that the change in the words of the statute of 1822 by the Revised Statutes of 1842, has changed the construction, so that now the whole proceedings, on the petition to prove in solemn form, must be completed within one year from the date of the proof in common form.

This construction of the statute would render the period of limitation for probate, in solemn form, ambulatory, and depending not upon the diligence of the party in claiming his right, but on his good luck in getting through his litigation in one year. When we consider how few contested probates are ever completed in one year, especially considering the right of appeal and the time ordinarily consumed in such appeals, it seems as if the mere statement of the consequences would be enough to show the construction untenable. It is well enough settled in New Hampshire, that, on a revision of a law, "the mere change of phraseology shall not be deemed a change of the law, unless such phraseology evidently purports an intention of the legislature to work a change." Jewell v. Holderness, 41 N.H. 161. I have, therefore, no difficulty in holding that it is sufficient if the petition for probate in solemn form be filed within one year from the date of the probate in common form.

The second question is, whether the wife of the executor named in the will was a competent witness.

By Gen. Stats., ch. 209, removing disabilities of witnesses by reason of interest, as parties or otherwise, it is enacted, sec. 23, as follows, viz.,---"The provisions of this chapter shall not affect the law relative to the attestation of wills or other instruments required to be attested by subscribing witnesses."

It is well settled that the witnesses must be competent at the time of attestation. Hindson v. Kersey, cited 1 Redf. on Wills 253; Hawes v. Humphrey, 9 Pick. 350; Haven v. Hilliard, 23 Pick. 10; Carlton v. Carlton, 40 N.H. 14; 1 Redf. on Wills 255, and cases cited; 2 Vesey, Jr., 636, ROSLYN, L. C.; Anstey v. Dowsing, 2 Stra. 1253.

In the case of Lowe v. Jolliffe, a most spirited and graphic account of which is given by Sir William Blackstone---1 Wm. Blackstone 365---Mr. Dovey, being executor in trust under the will by which a legacy of two hundred pounds had been given him for his trouble, was admitted to testify on his releasing his legacy. Mr. Dovey was not an attesting witness, but at that time, when any pecuniary interest would have excluded him from testifying, as well as from attesting the will, it was held that he must release his legacy, and that then he would be competent. I believe that the law is now universally held, that the person named as executor in the will is competent if he takes no pecuniary interest under it.

The only question which remains, then, is, whether the executor's right to the ordinary fees and commissions, under the laws of this state, con-

stitutes such a beneficial interest as to render him incompetent. My brethren have reached the conclusion that they do not, and, although I cannot agree with them, I acknowledge that the preponderance of authority out of the state is that way. I am not aware of any benefit which could result from any discussion by me.

The result is, therefore, that the executor under this will takes no beneficial interest such as to render him incompetent, and that therefore his wife was a good attesting witness. LADD, J

I agree with the chief justice, that the right of Judith H. Stewart to have the will proved in solemn form was not lost by the lapse of time, and do not wish to add anything to the reasons he has given for that conclusion.

The second question in the case is, Was Mary A. Harriman, wife of the executor, Henry H. Harriman, a "credible witness" within the meaning of the statute, at the time of the execution of the will? It is conceded that this depends upon whether her husband was disqualified to be a subscribing witness, by the fact that he was therein named as executor. This question has, therefore, been most elaborately discussed by counsel, who have called our attention to a great number of cases, both English and American, bearing more or less directly upon it. As to the English authorities, they seem to be uniform, that an executor, who takes no beneficial interest under the will, is a good attesting witness. Phipps v. Pitcher, 6 Taunt. 220; Bettison v. Bromley, 12 East 250; Goodtitle v. Welford, Doug. 139;---and see Lowe v. Jolliffe, 1 Wm. Bl. 365. It is said, however, by counsel for the appellant, that these cases may stand well enough, because in England the office of executor is simply a burdensome trust, for the performance of which no compensation is allowed; but that where, as in this state, a commission on moneys coming to the hands of the executor by way of remuneration for his services, and for the care, trouble, and risk not otherwise compensated (Gordon v. West, 8 N.H. 444), he takes such a direct interest under the will as disqualifies him to be a subscribing witness.

The question is, Was the witness incompetent by reason of interest at the time of attesting the will? Gen. Stats., ch. 175, sec. 12;---and see 1 Redf. on Wills 253, n. 1. It seems to me this question is determined in the negative by the plainest application of the rule with respect to disqualifying interest, as laid down in all the books and cases. That rule, as given by Professor Greenleaf, is,---It must be a present, certain, and vested interest, and not an interest uncertain, remote, or contingent. 1 Gr. Ev., sec. 390. That this has always been recognized in this state as a correct statement of the rule is abundantly shown by the numerous cases in our reports, where it was discussed and applied before the statutes removing the disqualification of interest. Mor. Dig., tit. Interest, p. 641, et seq.

Which one of the requirements of this rule is met by the fact that, if the testator does not revoke his will,...