Stewart v. Harriman , 56 N.H. 25 ( 1875 )

It would be little less than absurd to hold that a petition for the reexamination of the probate of a will must not only be filed, but that a hearing or trial thereon should be had, and a decree or judgment rendered, all within the space of one year from the probate of the will such a result could not ordinarily be reached by the use even of the utmost diligence. If the legislature intended such a construction should be put upon the statute — Gen. Stats., ch. 175, sec. 7 — they have failed to say so and too serious consequences are involved to warrant us in holding that such intent is to be inferred from the language used.

The other question raised is, whether the wife of a person named as executor is a credible attesting witness to the execution of a will. This question, so far as I am aware, is presented here for the first time. I have examined, so far as I have had opportunity, the decisions of other states, and, with the exceptions of the courts in North and South Carolina, the authorities are uniform that the executor, not otherwise interested in a will, is a competent attesting witness.

In Bettison v. Bromley, 12 East 250, the wife of an executor, taking no beneficial interest under the will, was held to be a competent attesting witness to prove the execution of it, within the description of a credible witness in the statute of frauds (29 Car. 2, ch. 3, sec. 5). Lord ELLENBOROUGH, C. J., said, — "The point had been decided so long ago as Lord HALE'S time, that an executor having no interest in the surplus was a good witness to prove the will in a cause concerning the estate, and this had been followed by other decisions to the same effect." So, in Phipps v. Pitcher, 6 Taunt. 220, an executor, clothed with a trust to pay debts, and to lay out money for the benefit of the testator's children, and with power to sell lands, but taking no beneficial interest in the will, was held to be a good attesting witness to the will.

Of the American cases, in Snyder v. Bull, 17 Pa. St. 58, is an able opinion by GIBSON, C. J., where the executor was held to be a competent subscribing witness. He said, — "Granting for the moment that the office of an executor is a beneficial one, he was not an executor, though nominated, for no man living has an executor; but he might, eventually, be one. True: but he might not. He might die in the lifetime of the testator, or his nomination might be revoked, or he might not find it convenient to accept. He may have had the executorship in prospect; but a contingent interest does not disqualify a witness at the time of deposing, or for an equal reason at the time of attesting. Had he renounced, he might have been sworn; yet his renunciation would not have been a release of an immediate interest. But, in contemplation of law, an executorship is not an office of profit. In England, the services are gratuitous, and, though they are paid for here, the design of the allowance is compensation. It is sometimes more, and seldom less; but the executor is supposed to get nothing that he has not earned, and if he sometimes gets too much, it is the fault of the court, and not of the law. * * Now, on no rule of evidence can the expectation of a fat job go to more than credibility; and interest which goes to competency is fixed and certain."

This point is decided the same way in Maine, in Jones v. Larrabee,47 Me. 474, Patten v. Tallman, 27 Me. 17, Warren v. Baxter,48 Me. 193; also, in Massachusetts, in Sears v. Dillingham, 12 Mass. 358, Wyman v. Symmes, 10 Allen 153; also, in Connecticut, in Comstock v. Hadlyme,8 Conn. 254; also, in New York, in McDonough v. Laughlin, 20 Barb. 238. To the same effect are Dew v. Allen, 1 Penning. (N. J.) 35, Coalter v. Bryan, 1 Grat. (Va.) 18, Perolta v. Castro, 6 Cal. 354, Orndorff v. Hummer, 12 B. Monroe (Ky.) 619, and Meyer v. Meyer, 7 Fla. 292.

In Richardson v. Richardson, it was said the only interest the executor can be said to acquire is, to perform a service for which he is to receive a bare compensation, just in proportion to the service performed.

In Meyer v. Meyer, Chief Justice BELTZELL says a contra construction "would disqualify not only the executor but all others rendering services to the estate. The judge of probate himself is allowed a compensation for his services in taking probate of the will: why is he not incompetent? In like manner the sheriff, appraisers of the estate, the auctioneer, mechanic, merchant, and lawyers rendering service, are entitled to compensation: why are they not also disqualified and incompetent witnesses?"

In McDonough v. Laughlin, supra, one Cassidy, a subscribing witness, was named as executor and residuary legatee in trust. S. B. STRONG, J., said, — "It is undoubtedly beneficial to have an employment for a reasonable compensation, but the benefit is not of a character to disqualify a witness; and it is to such only that the statute refers. * * I am inclined to follow the English decisions, as it seems to me they are supported by the better reason. It is true, that in England the executor has not generally any compensation for his services; but it is taking a very narrow view of the subject to suppose that the statute allowing a meagre compensation for what are too often unthankful services, can confer such a benefit as to disqualify an otherwise competent witness. The tendency of modern legislation is to relax the rules of exclusion, and I yield to the spirit of the age where those rules were merely technical or had no substantial foundation." This decision clearly overrules Burritt v. Silliman, 16 Barb. 198, where the conclusion was reached by the court, as stated by HARRIS, J., "with some hesitation."

In seeming conflict with the foregoing decisions Tucker v. Tucker, 5 Ired. (N.C.) 161, where the executor was held to be an interested witness, "because the act of 1799 gave an executor a legal right over and above his charges and disbursements to commissions on the personal estate."

In Huse v. McConnell, 2 Jones's Law (N.C.) 455, the court remark, — "It is well settled that an attesting witness to a will must be competent at the time of attestation, and that no subsequent release, where the objection is one of interest, can restore competency. The leading case in this state is Allison v. Allison, 4 Hawks 141. This was followed by the case of Tucker v. Tucker, 5 Ired. 161, in which the case of Allison is cited and approved, and in Morton v. Ingram, 11 Ired. 368. Both those cases are referred to as correctly decided, that the right to commissions which an executor under our statute has is such an interest as disqualifies a witness, and that a release does not remove the disqualification."

In the case of Huse v. McConnell, the wife of the person named as executor was one of the subscribing witnesses; and the case would be directly in point here, if it is authority in this state.

The decision in these North Carolina cases turned upon the peculiar provisions of their statutes, which gave the executor commissions over and above his charges and disbursements. In Allison v. Allison the court say that the right to commissions is such all interest as disqualified a witness, and that the executor has a right by law to commissions. These decisions are thus clearly distinguishable from the authorities of other states above cited, where commissions are allowed, not by virtue of some peremptory statute as perquisites, but, as in this state, as compensation for services. Gordon v. West, 8 N.H. 444; Lucy v. Lucy, 55 N.H. 9.

In Taylor v. Taylor, 1 Rich. (S.C.) 531, an executor was held to be an incompetent attesting witness to a will of personal property, under the act of 1824; but the decision was by a divided court, and several, of the judges delivered very able dissenting opinions.

It appears, then, that the decisions in this country uniformly support the doctrine that the executor, not otherwise interested in the will, is a competent attesting witness, except the cases above cited from the Carolinas, which would seem to stand upon exceptional grounds. In the face of authorities so numerous, and concurred in by courts eminent for the ability of their judges, I should hesitate to dissent, even though there might be doubt as to the soundness of the principle upon which their decisions next; but I think it has been clearly shown that there is no well grounded objection to the competency of an executor as an attesting witness to a will on the score of interest in the compensation to which he is entitled for services rendered, and the principle ought not at this day to be questioned. The policy of legislation of late years has been to relax the strictness of the rules excluding testimony on the ground of interest, and to admit such witnesses as may be available, leaving the question of credibility to be weighed with the evidence. Disabilities have been removed from parties in civil suits, from prisoners in criminal prosecutions, and from persons convicted of crime, until scarcely an obstacle remains in the way of preventing any and every one, who can throw any light upon the issue, from testifying as to all facts within his knowledge.

To hold, therefore, that Mrs. Harriman is not a competent attesting witness to this will would, in my judgment, be taking a retrograde step in the interpretation of principles that should govern the admission of evidence in this class of cases especially, and in the trial of causes generally. We are not called upon to take any narrow views of the subject, but are rather required to so interpret the law that the intention of testators will be carried into effect, and not be defeated.

Case discharged.