FROM THE MERRIMACK PROBATE COURT. 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, constitutes *Page 28 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.
Loading…