State Ex Rel. Schirmer v. Superior Court

French, J. The facts in this case are sufficiently stated in the following part of the memorandum opinion of the trial court: “In this matter there is offered first the alleged will of the deceased dated February 28,1926, executed in the presence of George M. Nethercutt and C. E. Schirmer, as attesting witnesses, and an alleged codicil to said will, but separated and detached therefrom, dated October 1,1926, and appearing to be signed by the deceased in the presence of George M. Nethercutt and C. E. Schirmer as attesting witnesses, being the same attest *579 ing witnesses subscribing as such to tbe said alleged will dated February 28, 1926. “In the last alleged codicil, no particular reference is made to tbe alleged will of February 28, 1926, or to any will, and tbe only connection, if any, with tbe will of February 28, 1926, must be implied from tbe reference in the said alleged codicil to tbe beneficiary named in said alleged will. “In said alleged will of date February 28, 1926, tbe attesting witness C. E. Sehirmer- is made beneficiary to the extent of one-half of tbe residue of tbe estate of tbe deceased, and is also named as executor of the alleged will, to act as such as under a non-intervention will and without bond. “In contemplation of tbe possible illegality of tbe alleged will, of date February 28, 1926, hereinbefore referred to, proponents offer with proof of its execution by tbe deceased, a previous will executed at Kalis-pel, Montana, on August 13,1924, and tbe question presented is whether either of said wills, or if either, then which one will be admitted to probate in this court as tbe last will of tbe deceased. “Giving consideration first to the alleged will of date February 28, 1926, and tbe alleged codicil offered therewith, it appears that tbe attesting witness to each of said alleged will and codicil, i. e., C. E. Sehirmer, is by bis beneficial interest therein, being named both a principal beneficiary and also executor, disqualified entirely as a witness thereto, and that without bis attestation and testimony as a witness the said alleged will lacks proper or sufficient attestation and proof to constitute it tbe will of tbe deceased. “In case of tbe witness and beneficiary C. E. Sehirmer, it appears that he is tbe grandson of tbe deceased; that bis mother, a daughter of tbe deceased is living, and that if tbe deceased bad died intestate be, tbe said G. E. Sehirmer, would not be an heir at law of tbe deceased or entitled directly to any share in her estate.” Tbe question to be decided in this case is, Was C. E. Sehirmer a competent witness to tbe will, being *580 named both, as a beneficiary and as executor? The rule is so well settled both at common law and by the decisions of the various state courts that it requires no citation of authority that competency is to be determined as of the date of the execution of the will. At common law, the beneficiary under a will was rendered incompetent as a witness by reason of such interest, and if the will could not be proven by a sufficient number of other witnesses, so that the incompetent witness was necessary, then the will failed. The practice' grew in some of the common law courts of permitting a witness to renounce his interest under the will, and thus restore competency. This was in line with the rule generally followed at that time that a witness rendered incompetent because of an interest in the subject-matter could be rendered competent by renouncing that interest. 1 Greenleaf on Evidence (14th ed.), p. 426. The uncertainty arising from the fact that some courts refused to follow this rule, and the abuses that grew up thereunder, resulted in the enactment of a statute (25 Geo. II, G. 6.), the result of this statute being that the rule was changed so that the will no longer failed, but the competency of the witness was restored and the legacy failed. This statute has, in effect, been enacted in most of the states, our statute Rem. Comp. Stat., § 1408 [P. C. § 10035], being as follows: “All beneficial.devises, legacies, and gifts whatever, made or given in any will to a subscribing witness thereto, shall be void unless there are two other competent witnesses to the same; but a mere charge on the estate of the testator for the payment of debts shall not prevent his creditors from being competent witnesses to his will. If such witnesses, to whom any beneficial devise, legacy or gift may have been made or given, would have been entitled to any share in the testator’s estate in case the will is not- established, then so much *581 of the estate as would have descended or would have been distributed to such witness shall be saved to him as will not exceed the value of the devise or bequest made to him in the will; and he may recover the same from the devisees or legatees named in the will in proportion to and out of the parts devised and bequeathed to him.” If it were not the purpose of this statute to render the witness competent, there could have been no reason for its enactment. The construction placed on statutes such as this by the courts generally, is that the competency of the witness is restored by the statute, and las legacy is voided by the statute. In re Knutson’s Estate, 144 Minn. 111, 174 N. W. 617; Jackson v. Woods, 1 Johns. Cas. (N. Y.) 163; Swanzy v. Kolb, 94 Miss. 10, 46 South. 10, 136 Am. St. 568; Kaufman v. Murray, 182 Ind. 372, 105 N. E. 466; In re Klein’s Estate, 35 Mont. 185, 88 Pac. 798; Schouler on Wills (6th ed.), § 537. The question of whether a person named as executor of a will is a competent witness is one that has been decided both ways. The greater weight of authority seems to be that such a witness is competent. It is apparent that the executor takes nothing under the will except an office or trust. Otherwise, in the event of his death before qualifying, his heirs would be entitled to such interest. All he takes from the will is a nomination and appointment to office. The law, not the will, provides the payment for his services. Sears v. Dillingham, 12 Mass. 357; In re McDaniel’s Will, 2 J. J. Marsh. (Ky.) 331; 40 Cyc. 1113; 28 R. C. L., 90. The so-called codicil to the will is not in this case connected with the will in any way sufficient to identify it, and its rejection was therefore proper. We hold that the witness C. E. Schirmer is competent as a witness, but the statute prohibits him from taking any of the estate under the will. That, however, does *582 not disqualify him, as executor, and the will of February 28,1926, should be admitted to probate. The judgment is reversed. Mackintosh, O. J., Parker, Tolman, and Mitchell, JJ., concur.