Trinitarian Congregational Church

Strout, J. The question is whether Agnes T. Hooper was a competent attesting witness to the will of Mehitable S. Rogers, there being only two other witnesses. The will contained a legacy of one hundred dollars “ and my personal property ” to Anstres R. Folsom. It then provided that “if Anstres R. Folsom . . . . decease previous to myself, Mehitable S. Rogers, I give and bequeath the same, viz. $100 and my personal property to Agnes T. Hooper and Martha N. Hooper.” The statute of .1821, c. 38, § 2, required a will “ to be attested and subscribed in the presence of the testator by three credible witnesses.” Section 8 of the same chapter provided that any devise or legacy to an attesting witness should be utterly void, and such person should be admitted as an attesting witness. This section was followed by sections 10 and 11, apparently unnecessary and inconsistent with section 8. By those sections it was provided that an attesting witness who was a legatee, should be regarded as competent, if he released or refused the legacy upon tender thereof, or had been paid its amount before he was called to testify, or died in the lifetime of the testator or before he had received or released the legacy. In the revision of 1841, c. 92, all these provisions were substantially retained, and a further provision added that “ a mere charge on the lands of the devisor for the payment of his debts, shall not prevent any of his creditors whose debt is so charged, from being a competent witness.” Under these statutes, a legatee might be an [421] attesting witness, as by becoming such his legacy became void. Section 2 of the same chapter in the statute of 1841 provided that wills should be attested by “three credible witnesses, or the same shall be void. And if the witnesses are competent at the time of attestation, their subsequent incompetency shall, in no case, prevent the probate of the will, if it be otherwise satisfactorily proved.” In 1856, the common law rule that excluded as incompetent as witnesses in civil suits all persons pecuniarily interested in its result, was, with certain exceptions• not material here, abrogated; but the act provided that it should not apply to the attestation of wills. To them, the common law rule remained applicable. Stat. 1856, c. 266. In the revision of 1857, c. 74, § 1, the witnesses were required to be “disinterested and credible.” The provision in the statute of 1841 making void a legacy to an attesting witness, was omitted, as also the provisions as to releasing or refusing a legacy. Under this statute, it was strenuously argued in Jones v. Larrabee, 47 Maine, 476, that the word “disinterested,” excluded as attesting witnesses all persons within the sixth degree of relationship. Although the court held otherwise, the legislature in 1859, c. 120, § 1, for the apparent purpose of removing a doubt, struck out the word “ disinterested,” and left the requirement “three credible attesting witnesses, not beneficially interested under the provisions of the will.” The statute has not been materially changed since. In the revision of 1883, mere redundancy was avoided, and the enactment now stands “three credible attesting witnesses, not beneficially interested under said will.” R. S., c. 74. In all these various provisions of statute, it appears to have been the dominant purpose of the legislature, that the witnesses before whom the testator publishes his will, and who by law are made competent witnesses to give their opinion of the mental condition of the testator at the time, though not experts, should be free from any bias or .temptation arising from pecuniary interest, in the establishment of the will. Usually a will is not produced, or its contents known, until after the death of the testator; and public [422] policy, as well as the protection of interested parties, requires that the testimony to establish the will, should come from the mouths of witnesses to it, who can fairly, disinterestedly, and impartially state the facts as to its execution, and give' an honest and unbiased opinion as to the soundness of mind of the testator. The term, credible witness, is not defined' by the statute, but must be construed by the common law rule. By that rule, credible, as applied to a witness, is equivalent to competent. Warren v. Baxter, 48 Maine, 194. By the .common law, any person having a pecuniary interest in the result of the cause, was incompetent as a witness. By the law now existing and applicable to this case, the witnesses must be competent at the time of the execution of the will. Subsequent incompetency is immaterial, if competent at the time. R. S., c. 74, § 2. Was Agnes T. Hooper, at the time she attested the will, “ beneficially interested” under it? She is named as a legatee, in a certain contingency. If Anstres R. Folsom, the legatee, should decease before the testatrix, Agnes was to take, otherwise not. While she did not take an absolute, certain interest under the will, it would become absolute and certain in an event which might happen. She was not an heir at law of the testatrix. If she had been, and would receive less under the will, if the contingency had happened, than she would receive as heir, she would be competent, as held in Smalley v. Smalley, 70 Maine, 548, it being against her interest to have the will sustained. So the executor named in the will has been held to be a competent attesting witness, as he takes no beneficial interest under it. Jones v. Larrabee, 47 Maine, 479. So an inhabitant and tax payer in a town, to which a legacy is given in trust, for purchase of books for a town • library, or for charitable purposes, or for the support of schools, has been beld competent. Hitchcock v. Shaw, 160 Mass. 140; Marston, Petitioner, 79 Maine, 50; Piper v. Moulton, 72 Maine, 156. So the prospective heirs at law of a legatee, are competent. They take nothing under the will. Jones v. Tebbetts, 57 Maine, 572. “ The competency of the witness is to be settled by his sitúa [423] tion at the time of attestation, with respect to the subject matter and the contents of the will.” Sparhawk v. Sparhawk, 10 Allen, 159. If the legacy had been absolute to Agnes T. Hooper, she clearly would have been an incompetent witness to the will. And, in such case, if she had died before the testatrix;, and the legacy had thus lapsed, her attestation would still be invalid. So a limitation over to the witness after failure of issue of the first taker, would be a disqualifying interest. The true test is, whether the will itself conferred directly or conditionally, a beneficial interest upon the witness. By this will, Agnes T. Hooper was to receive a pecuniary benefit upon the happening of an event, which might happen, and had the interest and hope, at the time of attestation, which such provision held out, to sustain the will. It is argued that the interest to disqualify, must be a certain and vested interest. Suppose an estate were given for life to the father of several children, remainder to his children surviving at his death? The children living at date of the will would not have a certain or vested interest. One or more of them might die before the father, and never acquire any interest in the estate. But it would hardly be claimed that the children were competent witnesses to the will,—that they had no beneficial interest under it, witbin the meaning of the statute, and no interest to uphold the will. If the will provides a pecuniary benefit to the attesting witness, though dependent upon the happening of an event which may happen, he has a beneficial interest under it, in contemplation of law; and if the subsequent event upon which the interest depends does not happen, that fact does not relate back and restore competency. It is important that the safeguards which the law has thrown around the execution of wills, should not be withdrawn or weakened; and to that end, a will which provides a pecuniary benefit, absolute or contingent, to a legatee, should not be witnessed by such legatee. He is interested, and therefore not credible or competent. Some of the decisions appear to have gone to the verge of the [424] law in the matter of attestation, in the effort to sustain wills. But we have found no case, nor been cited to any, in which a legatee upon a contingency such as tbis, has been held a competent attesting witness. We regard it unwise, and inconsistent witb sound public policy and the rights of interested parties, to further extend the exceptions to the common law rule. The result is, that Agnes T. Hooper was not a legally competent attesting witness, and the will must be disallowed. Appeal dismissed. Decree of the Probate Court affirmed.