Jones v. Tebbetts

Appt.eton, C. J. By R. S., 1857, c. 74, § 1, “ a person of sound mind, and of the age of twenty-one years, may dispose of his real and personal estate by will, in writing, signed by him, or by some person for him, and at his request, and in his presence, and subscribed in his presence by three disinterested and credible attesting witnesses.” By an act approved April 4, 1859, c. 120, the above section was amended so that it reads as follows: “ a person of sound mind and of the age of twenty-one years, may dispose of his real and personal estate by will, in writing, signed by him, or by some person for him, and at his request, and in his presence, and subscribed in his presence by three credible attesting witnesses, not beneficially interested under the provisions of the will.” The words “ not beneficially interested under the provisions of the will ” were inserted in lieu of the word “ disinterested.” The object of this change was probably to authorize the attestation of a will by executors or trustees, they not being “beneficially interested,” under its provisions, as devisees or legatees. It was to remove doubts. It was to enlarge, rather than to restrict the rules of evidence. The will in controversy is attested by the children of Simon Teb [574] betts, who was named executor therein and was a legatee. Bat his children are not beneficially interested under the provisions of the will. There is no devise nor legacy to them. The beneficial interest of the father is not the beneficial interest of the son. The interest contemplated was direct, not remote and contingent. All who are credible, that is competent witnesses, provided they are not beneficially interested under the provisions of a will, may attest its éxecution. The statute imposes no restriction as to age. The court have no power to impose any, or to adopt any rule other than that prescribed by the statute. A minor, not beneficially interested under the provisions of a will, may be an attesting witness thereto, precisely to the extent that he is a witness generally. Carlton v. Carlton, 40 N. H. 14. The case to stand for trial. Cutting, Kent, Walton, Barrows, and Danporth, JJ., concurred.