Swanzy v. Kolb

• Decision Date: 09 March 1908
• Docket Number: 12,718
• Citation: 94 Miss. 10,46 So. 549
• Court: Mississippi Supreme Court
• Parties: ELIZABETH SWANZY ET AL v. JOSEPH L. KOLB ET AL

46 So. 549

94 Miss. 10

ELIZABETH SWANZY ET AL v. JOSEPH L. KOLB ET AL

No. 12,718

Supreme Court of Mississippi

March 9, 1908

FROM the chancery court of Lowndes county, HON. JAMES F. MCCOOL Chancellor.

Kolb and others, appellees, were complainants or petitioners in the court below; Mrs. Swanzy and others, appellants, were defendants there. From a decree probating a will and adjudging the title to lands thereunder, the defendants appealed to the supreme court.

This proceeding was instituted in 1904 by Joseph L. Kolb and others, and seeks to establish the will of Joseph Kolb deceased, who died in 1880, leaving a widow, Sarah A. Kolb and no children, and to vest the title to the lands of the testator in complainants, the heirs at law of the testator's brothers and sisters; all of the brothers and sisters having died. The defendants to the bill are the heirs at law of testator's widow, Sarah A. Kolb. The bill charges that Joseph Kolb died leaving a will, by which he devised a life estate in his lands to his widow, Sarah A Kolb, with remainder to his brothers and sisters; that the will was given to one Samuel Swanzy, one of the executors named therein, to be probated; but the executor failed to probate the will and it cannot now be found. The defendants answered, denying that Joseph Kolb left any will. Testimony was taken, and the chancery court upon trial of the case rendered a decree establishing the will and ordering its probation. The supreme court, at first, affirmed the decree of the court below without written opinion. Thereafter appellants filed a suggestion of error calling attention to the fact that, conceding the will to have been duly established and probated, the testimony shows that one of the three witnesses to the will was Newton Kolb, one of the devisees named in the will, and that, therefore, the devise as to him was void, under Code of 1871, § 1101, in force when the testator died, since he was a subscribing witness.

Suggestion of error sustained.

William Baldwin, for appellants.

Even if all these witnesses to this will, that is to say, if all three of them, Malloy, Morris and Newton Kolb, were to come into court and prove the will in due form, most certain it is that the will would be void, so far as the part of the land devised to Newton Kolb is concerned.

Newton Kolb was one of the alleged witnesses to this will, giving to him, Newton Golb, part of the land.

And the decree appealed from gives to Newton Kolb his full part. Code 1871, § 1101.

Surely the will could not be proved except by the name of Newton Kolb and if proved by the name of Newton Kolb, it is void as to any devise to him in the will, and as to the part devised to Newton Kolb, Joseph Kolb died intestate, and that part went to his widow, and at her death, belonged to her heirs, who are the defendants to this bill.

Leftwich & Tubb, for appellees.

It seems to us a far-fetched idea that the mere presence of the name of Newton Kolb as a witness on the face of the paper should forfeit his devise; that is not the language of the statute. That result was to follow only when the will could "not otherwise be proved," and it has otherwise been proved in this case, because Newton Kolb could not be called from the grave. If Newton Kolb of all the witnesses were alone alive and we had no secondary proof by which we could establish the will and we were compelled to call him as we doubtless would be, then his devise would be forfeited, but only then would it be forfeited. Many cases could be referred to if necessary to show that wills have been established not only in the absence of the testimony of the subscribing witnesses, but even contrary to their testimony. As the courts remarked in the cases here referred to, it is not to be tolerated that the devisees should lose their estate because of the death, loss of memory, or stupidity of perverseness of the witnesses to it who could not remember its legal execution. One witness proved a will when he does not remember the others. Dan v. Brown, 15 Am. Dec. 395.

The will may be established by circumstantial or presumptive evidence when all the witnesses testified it was not duly executed in some particulars. Note, Welch v. Welch, 15 Am. Dec. 126.

The presumption in favor of the due execution of the will when it appears on its face to possess all the legal requisites will prevail over the testimony of all the witnesses to the contrary.

Note, Jackson v. LeGrange, 10 Am. Dec. 237.

Argued orally by George J. Leftwich, for appellee.

OPINION

WHITFIELD, C. J., delivered the opinion of the court in response to the suggestion of error.

This will required, to be valid, three attesting witnesses. Joseph Kolb, the testator, died in June, 1880. The Revised Code of 1871, therefore, governs. Code 1871, § 2388, provides as follows: "If not wholly written and subscribed by himself or herself it [the will] shall be attested by three credible witnesses in case of the devise of real estate." The word "credible," in this statute is synonymous with "competent."

Schouler in the second edition of his work on Wills (section 350), says: "By 'credible' witnesses the English law has understood such persons as were not disqualified from testifying in courts of justice by mental imbecility, crime or interest. In American practice 'credible' signifies the same as 'competent,' * * * and hence a person convicted of crime might in most states legally witness a will, and the fact of his conviction could only be used to impeach his testimony. Under the statute of frauds a will of lands was required to be attested by three or four credible witnesses. This was interpreted to mean competent witnesses and by the common-law rules as to competency. If a legacy or devise was given to a subscribing witness, he became incompetent by reason of interest, and the whole will failed, through failure of the proof requisite to establish the will." This rule, operating the gross injustice of defeating the whole will, was changed by the English statute (St. 25 Geo. II, c. 6), which provided that the will should only be invalid so far as the interested witnesses was concerned. Underhill, in his work on Wills (volume 1, § 82) says: "In the United States of America the incapacity of an attesting witness to take under the will is absolute, except there be the statutory number of attesting witnesses to establish the will without his testimony." See, also, sections 192, 193, vol. 1, of Underhill on Wills.

Code 1871, § 1101, reads as follows: "Sec. 1101. If any person shall be a subscribing witness to a will wherein any devise or bequest is made to such subscribing witness and the will cannot otherwise be proved, such devise or bequest shall be void, and the witness shall be competent as to the residue of the will as if no such devise or bequest had been made, and shall be compelled to testify."

What is it that is to be thus "otherwise proved"--the contents of the will, or the execution of the will? The history of legislation in England and the United States on this subject shows plainly that what is to be thus "otherwise proved" is the execution of the will. Wigmore on Evidence vol. 2, p. 1593, § 1304, par. 2 says: "Where a statute requires that execution be 'proved' by a certain number of witnesses, that number must be called, and each must presumably testify to all the elements of a valid execution." The following authorities show plainly that it is the execution of the will which is to be proved: Wigmore on Evidence, vol. 2, § 2048; Id. vol. 1, § 582; Id. vol. 4, § 2456; Schouler on Wills, §§ 353, 357. The language of Scouler's section 353 is, speaking of subscribing witnesses as to their competency and the disqualification arising from interest: "This policy extends to those beneficially interested who are not...