Millay v. Wiley

The opinion of the Court was delivered by Cutting, J. In Nash & al., App’ts, v.. Reed, [vide p. 168,] we have decided that the appellants were not made a party as heirs of a deceased party, and, consequently, were competent on the trial, in which an issue was made as to the validity of their ancestor’s will. In that case, the question now presented arose, not directly, but only incidentally, as to whether [237] the person named as executor in the will, was the party prosecuting or defending, within the true intent and meaning of c. 82, § 83, so as to be excluded as a witness, before the validity of the will was established. It is here unnecessary to repeat, and we only refer to what was said in the former case, bearing upon this question. The Court, however, very strongly intimated, that the statute exceptions to the admission of parties were never intended to embrace proceedings in relation to the probate of wills; and we may here add, that the term “ special proceedings,” named in § 84, has reference only to such acts as operate upon and control the estate represented. If correct in such conclusion, it would be decisive of the present inquiry. But we will proceed to give some additional reasons for our present conclusion. And, first, the peculiar phraseology of the statute in this particular is worthy of notice, viz.: — “The provisions of the five preceding sections shall not be applied, &c., when, at the time of trial, the party prosecuting or the party defending is an executor.” When is the person named in the will an executor? Let § 4, of c. 64, answer: — “When any will is duly proved and allowed, the Judge of Probate may issue letters testamentary thereon, if he is legally competent, accepts the trust and gives bond to discharge the same.” Prom which it appears that the following prerequisites are necessary, to constitute the person an executor: — First, the probate of the will, which any person interested in may offer for probate. See § § 1, 2. Second, competency, in the opinion of the Probate Judge. Third, acceptance of the trust, for which purpose he may be cited in. See § 4. Fourth, delivery of a bond to discharge the same. § § 4, 5. And fifth and last, reception of letters testamentary. Again, as to the party prosecuting or the party defending. It will not be pretended that James Wiley, the excluded witness, at the time of the trial, could prosecute or defend suits in the capacity of executor, or in any way interfere with the testator’s estate without becoming an executor in his own wrong. See c. 64, § 32. By § 27, “when, from any cause, [238] there is delay in granting letters testamentary, the Judge of Probate may appoint a. special administrator, who may proceed in the execution of. his dutiés, until it is otherwise ordered by the supreme court of probate.” Now, suppose such an administrator has been appointed on the estate of the deceased, (for the contingency has happened) would the person named executor in the will, and the administrator appointed by the Judge, both be excluded as witnesses, in the prosecution or defence of suits ? Certainly not; Wiley would be a competent witness in a suit brought by or against such administrator ; and still, Wiley was no less an executor after the appointment of the administrator, than he was before; and the conclusion is, he never has been executor at any time, and never may be. Exceptions sustained. Verdict set aside, and new trial granted. Tenney, C. J., and Rice, Appleton, May and Goodenow, J. J., concurred.