Perkins v. Windham

. COLLIER, C. J. Assuming that the interest of the attesting witnesses is, under the will, so direct as to render them incompetent, according to the rules of the common law, we will inquire what influence the statute exerts on their competency. The act of 1806 enacts, that “ If any person shall be a subscribing witness to a will, wherein any devise or bequest is made to such subscribing witness, and the will cannot be otherwise proved, the devise or bequest to such witness shall be void, and he or she compellable to appear and give testimony on the residue of the will, in like manner as if no devise or bequest had been made. But if such witness would have been entitled to any share of the testator’s estate, in case the will was established, then so much of such share shall be saved to such witness as shall not exceed the value of the said devise and bequest made to him or her in the said will.” [Aik. Dig. 449.] So far as it is material to consider this enactment, it is substantially the same as the 25th Geo. 2, c. 6. That statute like our 636 own, expressly declares, that every devise or bequest to a person attesting the execution of a will, shall be utterly null and void; and such person shall be admitted as a witness to establish the same. The passage of that act was induced by the doubts which were entertained, whether the competency of such an interested person could be restored by a release, payment, or extinguishment of all his interest, so as to admit him to prove the execution of the will. Our statutes restores the competency of the attesting witness by extinguishing all interest which he would otherwise take under the will, whenever his testimony is necessary to establish it. The meaning of the words, ‘•'give testimony on the residue of the will,” is, that the evidence of the witness shall be competent to prove its execution so far as he is not a beneficiary of the testator’s bounty. In the case before us, neither of the witnesses take an interest to vest in possession immediately upon the testator’s death; but its enjoyment is postponed until the death of their respective parents, who are d'evisees and legatees. This will confers upon them an interest in prxsenti, to be enjoyed in futuro; and its forfeiture by the statute cannot affect the interests of those whom the witnesses are to succeed. The record sufficiently establishes the examination of the attesting witnesses, to prevent them from coming in for a share in the remainder, after the death of their parents — the statute which has been cited, divests them of all interest under the will; and as a necessary consequence the order of the Orphans Cqurt is affirmed.