Paxson's Estate , 221 Pa. 98 ( 1908 )

Opinion by

Mr. Chief Justice Mitchell,

Appellants have presented a learned argument on the etymology and primary meaning of the word “ attest,” but unfortunately it has little bearing on the question in this case. The word has several variations of meaning, subordinate to' the general sense, among which the latest authority, the new Oxford dictionary, gives (a) to bear witness to, to testify, to certify, (b) formally by signature. The exact question here is the sense in which the legislature used the word "in the Act of April 26, 1855, P. L. 328.

By the general wills Act of April 8, 1833, P. L. 249, wills “ in all cases shall be proved by the oaths or affirmations of two or more competent witnesses.” No subscribing witnesses are necessarj7-, «proof of the testator’s signature by witnesses acquainted with his handwriting being sufficient, and the witnesses being only required to be “ competent, ” i. e., disinterested, at the time of making proof. In the act of 1855, however, the legislature set an entirely different standard of proof. By that act “ no estate, real or personal, shall hereafter be bequeathed, devised, or conveyed to anybody politic, or to any person in trust for religious or charitable uses, except the same be done by deed or will, attested by two credible, and, at the time, disinterested witnesses, at least one calendar month before the decease of the testator or alienor.”

The purpose of this act is plain. It was to make reasonably sure that testamentary gifts to religion or charity were the result of deliberate intent of the testator, and were not coerced from him while in weakened physical condition under the influence of the doubts and terrors of impending death. The main feature of this precaution was, of course, the requirement that the gift must be by deed or will one calendar month before the decease of the donor or testator, and this fact must be attested by two credible and, at the time, disinterested witnesses. Nothing is easier than to antedate a writing, whether deed or will, and the statute guarded against that danger by the requirement that it should be not merely proved, but “attested ” by two witnesses, and those two must be at “ the time disinterested.” At what time? Certainly not merely at the time of probate, for that was the general rule under the act of 1833, and did not need any re-enactment. Those whose memory goes further back than the evidence act of 1887 will recall the amount of time and argument spent over questions of the interest of witnesses, and whether the interest had been or could be released. The act closed all controversy on this point by the requirement that the witnesses should be disinterested “at the time.” At what time? Clearly at the time the instrument was executed in the manner required by the statute. In Irvine’s Estate, 206 Pa. 1, it was said by our Brother Mestrezat, that this language “pre-supposes the existence of a writing signed by the testator at the time of the attestation,” and that necessarily is the time the qualification of the witnesses must be referred to.

Having regard, therefore, to the change in the language of the two statutes from “ proved ” in the act of 1833 to “ attested ” in the act of 1855, to the requirement of the latter that the two witnesses shall be “ at the time ” disinterested, and the absence of any other reasonable intendment as to that time than the date of compliance with the requirements of the statute, to wit: the execution of the will not less than a calendar month before testator’s death, and its attestation by two “ at the time” disinterested witnesses, the conclusion is not to be avoided that the attestation must be by witnesses who then and there make compliance with the statute certain by subscribing their names. An attesting witness under this statute means a subscribing witness.

The learned court below called attention to the danger from the death of one or both witnesses that the gift might fail if the witnesses had not signed. It is a strong argument, ab in-con venienti, and adds to the force of the conclusion. But we put our decision on the manifestly intentional variation in the lam guage of the two statutes and the nature of the additional requirements in the act of 1855.

Decree affirmed.