Lyon v. Ogden

Walton, J. The question is whether real property situated in this .State can be effectually disposed of by a will having but two subscribing witnesses. The answer depends upon where the will is made. If made in this State, it will not. Our law requires at least three subscribing witnesses. But if made in another state or country, where but two subscribing witnesses are required, or, if first proved and allowed in another state or country according to the laws thereof, and then legally allowed and recorded in this State, as it may be, it will. This conclusion is seemingly in conflict with section 36, chapter 65, of the Revised Statutes of 1883. But the words in this section, "duly executed according to the laws of this state,” were, in the opinion of the court, rendered inoperative by the act of 1874, chapter 169, and should have been omitted in the revision of 1883. Their retention was probably the result of an oversight. They are repugnant to sections 12, 13, 14, and 15, chapter 64, of the Revised Statutes of 1883, and the latter provisions being the embodiment of more recent enactments, must control. This conclusion* entitles the defendants to judgment. Judgment for defendants. Peters, C. J., Libbey, Foster and Haskell, JJ., concurred.