Kelly's Estate , 236 Pa. 54 ( 1912 )

Opinion by

Mr. Justice Stewart,

The only attestation to the execution of this will is in connection with the codicil thereto. The will proper is signed by the testator, but there are no subscribing witnesses to the signing. To the execution of the codicil, made a year or more subsequent, there are two attesting witnesses. It follows that without the codicil the will would be invalid as to the several charitable bequests therein contained. The will and codicil being in contemplation of law one testamentary act, the attestation of the latter is the attestation of the former, and saves the former from the operation of the statute which otherwise would defeat it, providing the attesting witnesses to the codicil are without interest in the will. And this is the only question here. One of the attesting witnesses is John D. Hahn. The will contains the following provision with respect to him: “I leave my drug business and house furniture to my clerk John H. Hahn on condition that he pays one thousand dollars to Miss Ella Cowan, my housekeeper.” It is argued that inasmuch as it has not been shown that at the time of the execution of the will the drug business and furniture exceeded in value the amount the legatee was to pay to Ella Cowan, it cannot be said that Hahn has a pecuniary interest in the will. A clear presumption aifises from the gift itself that benefit and advantage to Hahn was intended. The subsequent appraised value shows that there was no disappointment or failure in this regard. But aside from this, Hahn is a legatee under the will, and this circumstance alone disqualified him as a witness under the distinct ruling in Kessler’s Estate, 221 Pa. 314. The law will not attempt to weigh and measure the advantage resulting to the legatee in order to determine the question of his competency as an attesting witness to a will of this character. It will assume his interest from the single fact that he is a legatee named in the will.

The assignments of error are dismissed and the decree is affirmed.