Hudson v. Flood

Pennewill, C. J., after stating the facts as above, delivering the majority opinion of the court: [1] Under the law of this state, Revised Code of 1915, §§ 3241 and 3242: — 452 — “Every will, whether of personal or real estate, must be in writing and signed by the testator, or by some person subscribing the testator’s name in his presence and by his express direction, and attested and subscribed in his presence by two or more credible witnesses, or it shall be void. “A creditor of a testator may be a witness to his will, although it contain a provision for the payment of his debts. Also a person may be a witness to .a will containing a devise, or bequest, to the trustees of the poor of either county, or to any person, or institution, for a public purpose; although he is a taxable for the support of the poor of said county, or for such purpose, and the taxes to which he is liable will, by means of such devise, or bequest, be diminished." Said section 3241, commonly known as the statute of wills, is practically the same as that part of the English statute of frauds, 29 Charles II, which required a will of real estate to be signed and attested by credible witnesses. The question, who was a credible person within the meaning of the statute of frauds, was raised and considered in England very soon after the enactment of the statute; and we may regard it as now settled by the decisions in this country as well as in England that the word “credible” as used in will statutes is synonymous with “competent” and is to be given the same meaning by the courts. It is also well settled that the words “credible persons”, as used in the statute mean persons competent to testify at the time of attestation. 1 Woerner, Am. Law Administration, § 41; Page on Wills, 191; 1 Underhill on Wills, 192; 40 Cyc. 1109; Haven v. Hilliard, 23 Pick. (Mass.) 10; Smith v. Goodell, 258 Ill. 145, 101 N. E. 255; Jones v. Larrabee, 47 Me. 474; Marston’s Appeal, 79 Me. 25, 8 Atl. 87; Bruce v. Shuler, 108 Va. 670, 62 S. E. 973, 35 L. R. A. (N. S.) 686, 15 Ann. Cas. 887; Robinson v. Savage, 124 Ill. 266, 15 N. E. 850; Sutton v. Sutton, 5 Harr. 459; Shaffer v. Corbett, 3 H. & McH. (Md.) 532; Wyndham v. Chetwynd, 1 Burr. 417; 4 Kent’s Com. 496; In re Wheelock's Will, 76 Vt. 235, 56 Atl. 1013; Leitch v. Leitch, 114 Md. 336, 79 Atl. 600;2 Blackstone, 378; 29 A. & E. (1st Ed.) 233; Holdfast v. Dowsing, 2 Str. 1253; 1 Jarman on Wills, 71. In the case in 23 Pick. Chief Justice Shaw said: “The word‘credible’ * * * is used to designate a person entitled to be examined in a court of justice.” — 453 — In Smith v. Goodell, in describing a “credible person” the court used this language: “A credible witness to the execution of a will is one who, at the time of attesting the will, would be legally competent to testify in a court of justice to the facts which he attests by subscribing his name to the will.” Some of the courts in the above cases said the words mean: “Such persons as are not legally disqualified from testifying in courts of justice by reason of mental incapacity, interest, the commission of crime or other cauSe that makes the witness incompetent, and are not used as descrip- • tive of persons of good moral character or reputation.” Other courts have declared, that the words ‘ ‘ credible persons ’ ’ are superfluous and meaningless because under general law a witness must be “competent” in order to testify to any fact in a court of justice. In a recent case in our own state, viz., In re Le Carpentier’s Will, 91 Atl. 204, the Chancellor in discussing the word “credible” said: “The statute of this state requires that there be two or more ‘credible’ witnesses to a will. It seems to be settled by uniform decisions that ‘credible’ is synonymous with ‘competent’. The case of Sutton v. Sutton, 5 Harr. 459, seems to have a different definition, and to make ‘credible’, synonymous with ‘creditable’, but it was not so there said respecting the testimony of an attesting witness.” In the Sutton case, the court, when charging the jury respecting the witness Jackson, were not construing the word “credible” as used in a will statute, but were speaking generally of the meaning of the word as applied to witnesses whose credibility is attacked, saying they are: “Such as may be relied on for truth in reference to the matter they are called on to establish.” We do not regard this instruction of the court as having any bearing on the present question. It could not have had, because we must assume that the court were acquainted with the uniform decisions respecting the word “credible” in will statutes. It is so well settled that the word means competent, and nothing more, that it cannot be now regarded as a debatable question. — 454 — Under the common law a beneficiary under a will was not a credible person, and could not be an attesting witness, because of interest. For that reason he was not competent to testify, but this rule of exclusion applied to interested persons offered as witnesses in all actions, and not to the proof of wills alone. Such is the general rule in all jurisdictions unless changed by statute. 29 A. & E. (lsf Ed.) 233. One of the questions submitted to the court for determination is, whether this common-law rule is changed by the statute of this state passed in 1881, Revised Code of 1915, § 4212 (Laws 1881, c. 537), sometimes called the evidence or enabling act, and which provides as follows: “No person shall be incompetent to testify in any civil action or proceeding whether at law or in equity, because he is a party to the record or interested in the event of the suit or matter to be determined: Provided, that in actions or proceedings by or against executors, administrators or guardians in which judgment or decree may be rendered for or against them, neither party shall be allowed to testify against the other as to any transaction with or statement by the testator, intestate or ward, unless called to testify thereto by the opposite party.” This act extends to all persons save one excepted class, and it is natural and logical to believe that if not intended to embrace attesting witnesses who have an interest in the will, the statute would have also excepted them. It is admitted, that prior to the enactment of this statute, the rule of common law above referred to prevailed in this state. Was the common-law rule changed by the enabling act? It would be difficult to use language more comprehensive than the words of the act, “in any civil action or proceeding whether at law or in equity ’ ’. The Legislature evidently thought the word “action” might not cover everything intended, and therefore added the more general term “proceeding ”, which is broad enough to embrace every matter respecting which a person might be called to testify. Certainly the proof of a will, if not technically an action, is a proceeding within the meaning of the act, and any witness competent to give testimony in a court of justice at the time of attes — 455 — tation would be a credible person within the contemplation of the statute respecting wills. We would have no doubt of this even in the absence of authority, because the language of the act is so clear there is no room for construction and no reason for doubt. But the great weight of authority sustains the position the court have taken, and very few, if any, cases can be found to the contrary. Cases can be found in which the court deprecated that such is the law, and expressed the fear that because of it fraud might be easily and frequently perpetrated upon aged and weak-minded testators. But even such courts are constrained to say that the Legislature and not the courts must provide the remedy for whatever evil or danger exists. The court in Carlton v. Carlton, 40 N. H. 17, commenting on the fact that attesting witnesses are placed around the testator to judge of his capacity and prevent fraud, said: “But whatever they are required or authorized to do, they are not required to have any other qualifications than those of ordinary testifying witnesses.” An attesting witness to a will in order to possess the requisite competency, should be of such character and have such qualifications as would render his testimony admissible on occasions when the testimony of witnesses is ordinarily received. Whether the witness is said to be “not competent” or “not credible”, the objection in either case is based upon the interest of the witness, and that is the disqualification the statute was designed to remove. It is unnecessary to quote from or comment upon the authorities cited in support of the proposition that an enabling statute like ours removes the disqualification of a testamentary witness who is interested in the will. But we will refer briefly to the cases in this state, and mainly for the purpose of showing that they are applicable to the question before the court. It is argued by counsel opposing the will that the Spiegelhalter case, 1 Penn. 5, 39 Atl. 465, can have no application because it involved the competency of an executor, who is not in this — 456 — country, and was not in England under the common law, disqualified if he took no interest under the will. It is assumed in the argument that commissions allowed by law would not constitute a disqualifying interest. It is contended that an executor was a credible and competent attesting witness.to a will in this state before the passage of our enabling act, and the English cases, as well as some in this country, including the Sutton case in this state, are cited as authorities to sustain that contention. It is not denied that in England an executor was a competent attesting witness to a will, and there are cases in this country which seem to have followed the English decisions, but illogically we believe in those states where executors are entitled to compensation under the law. In this connection we need do no more than quote from the well-considered Delaware case of Davis et al. v. Rogers, 1 Houst. 44, the following: “The general principle is a common-law maxim, that no one who is interested in the event of a cause, can be heard as a witness in the trial of that cause. Applying that principle to the case of an executor called to support the will, we may assume that the English courts regard him as a competent witness, because, according to their system, the executor takes no interest under the will,/heing_ entitled * * * to no compensation by way of commissions, or jstherwise. He is regarded there as taking an onerous office rather than a desirable employment. * * * But in the United States, in most, if not all of them, it is otherwise as to compensation. In them the executor is entitled to his commissions by the statute law, and this interest has in most cases been held to exclude the executor from being a witness to support the will. * * * “In this state there has been no adjudication of this precise question. In the case of Sutton v. Sutton, which was an issue of devisavit vet non, the contest was respecting the codicils of the will. One of the executors, who took an interest under the codicils, was called as a witness and rejected; the other executor, who took no interest under the codicils, was admitted; they were both appointed executors by the will, and neither by the codicils. This case has been spoken of as ruling the principle that a mere executor having no additional interest under the will, might be a witness to support it; but the case does not rule that point. The witness, supposing he had an interest as executor, was still an executor, whether the codicils were supported or not. He therefore had no interest whatever in the result of the case. But the other executor, who took an interest under the codicils, was excluded. So far, then, as the case is an authority on the point, it is against the admission of an executor with an interest. * * * The inclination, of all our minds is to regard the compensation as a disqualifying interest, whether derived from express provision in the will, or through the law allowing commissions to executors. It would seem like a refined distinction to say that an executor, with a compensation of one thousand dollars fixed by the will, has an interest; — 457 — while one who has commissions to the same amount, fixed by law, has no interest in the question whether it shall be sustained or not.” It is true the witness offered in that case was not an attesting, but was called as a general witness to sustain the will, but the reasoning of the court applies equally to an attesting witness. The case of In re Spiegelhalter’s Will is therefore in point, and the following language was warranted by the facts, viz.: “The probate of a will is a civil proceeding. * * * The executor, therefore, would be a competent attesting witness under the express terms of the statute." In Le Carpentier’s Will, already briefly referred to, one of the attesting witnesses was a large stockholder and director in a trust company which was appointed trustee and executor under the will. The Chancellor in this case approved the last-mentioned decision, saying: “The executor was one of the attesting witnesses, and it was held he was not disqualified to prove the execution of the will. The court relied on the ;act of 1881, above referred to, as making the executor competent as an attesting witness. * * * The case * * * also decides that a trustee under a will is not disqualified to be an attesting witness, for interest in the event is no longer a disqualification.” It is true that the Orphans’ Court in which the Le Carpentier case was decided was bound by the decision of the Spiegelhalter case in the Superior Court, and it could not do otherwise than follow that decision. But while this is true, we think the unqualified approval by the Chancellor of the reasoning and decision of the Superior Court is of some value. We think it may be stated as a well-settled proposition of law, and generally recognized that where there is no express language in the statute disqualifying persons taking an interest under the will from acting as attesting witnesses, and there is an enabling act such as ours, which contains no exception of attesting witnesses, persons taking an interest under the will are competent witnesses to prove its execution. In most of the states the statute 25 George II has been adopted, or similar statutes enacted, under which interested attesting witnesses are made competent to prove the will, but are pre — 458 — vented from taking any benefit thereunder. And in those states it has been uniformly held that such a statute was not repealed by an enabling act like ours, but that both statutes would stand— the one an exception to the other, and not inconsistent. There are a few states however in which practically the same question has arisen as is now before us, and the reasoning of the courts clearly supports the proposition above stated. Kumpe v. Coons, 63 Ala. 448; Snider v. Burks, 84 Ala. 53, 4 South. 225; Estep v. Morris, 38 Md. 417; Harris v. Pue, 39 Md. 535; Leitch v. Leitch, 114 Md. 336, 79 Atl. 600; Martin v. McAdams, 87 Tex. 225, 27 S. W. 255. [2] The second question to be decided by this court is, whether the probate of a will is an action or proceeding by or against executors or administrators within the meaning of the proviso contained in the enabling act. We think it is not, and there does not seem to be any authority to the contrary. The question has been expressly decided in this state in the Spiegelhalter case, and we need only quote the pertinent part of the opinion delivered by the court, viz.: “Can it be said, in any proper sense, that the probate of a will is an action or proceeding by or against an executor, and in which judgment or decree may be rendered for or against him as such executor? There are no parties to the action. In contemplation of law it is solely an inquiry as to the validity of a certain paper writing, whether it is or is not the last will and testament of the decedent; and the judgment or decree in such case is either that it is or is not such will. The costs are uniformly taxed upon the estate inquired about, and an executor is in no wise liable to have judgment or decree rendered for or against him, as such, for costs, charges or otherwise.” This decision was approved by the Chancellor in the Le Carpentier case. There are many cases from other states to the same effect, but we cite only the following; Taylor v. McClintock, 87 Ark. 243, 112 S. W. 405; Martin v. McAdams, 87 Tex. 225, 27 S. W. 255; In re Miller’s Estate, 31 Utah, 415, 88 Pac. 338; Hays v. Ernest, 32 Fla. 18, 13 South. 451; Kumpe v. Coons, 63 Ala. 455; Williams’ Ex’r v. Williams, 55 Wis. 300, 12 N. W. 465, 13 N. W. 274, 42 Am. Rep. 708; 40 Cyc. 1224, and cases mentioned. It is argued by the contestants that the enabling act did not — 459 — remove the disability of husband or wife as witnesses, so as to enable the one to testify for or against the other, and therefore it was not of general application. It is manifest that the common-law rule of exclusion of husband and wife as witnesses was based upon a broader ground than the interest either might have in the particular action or proceeding. It was founded upon the unity of husband and wife, and the public policy which demanded the protection of the confidence and harmony of that relation. It is also argued that it is against public policy to permit a person benefited by a will to testify in its support. In speaking upon this point the Vermont court in the case of Wheelock’s Will, 76 Vt. 235, 56 Atl. 1013, said: “It is argued that to allow a legatee to testify to the execution of a will is improper as against public policy. * * * Since such disqualification (for interest) has been removed by statute, it is no more against public policy to allow a legatee to testify as a common witness on all questions arising in the probation of a will than it is to allow any other person interested in the result of a suit to give testimony therein. In either case the only reason why it could be against public policy is the interest of the witness, and that ground is no longer available.” In Snider v. Burks, the Alabama court said: “We are deeply sensible of the bad results that may flow from such a rule of evidence, but this is for legislative rather than judicial correction.” [3] It is further argued that Section 3242 of the Revised Code of 1915, which declares that a creditor of a testator, or a taxable for the support of the poor of the country, may be a witness to a will, taken in connection with the will statute, “said to the people of this state that no other interested persons than those mentioned were competent to attest a will. There can be no other interpretation.” We very much doubt that this statute, if it had been originally enacted subsequent to the enabling act, would have the effect claimed by the caveator; but we are not required to express any opinion on that question. It was enacted long before, and has not been re-enacted, since the passage of the enabling act, until the adoption by the Legislature of the Code of 1915, which was not only subsequent to the death of the testatrix, but after — 460 — the will in- question was offered for probate. The statute invoked cannot, therefore, have any application to the present case. [4] The third and remaining question upon which the court is expected to express an opinion, is whether the English statute 25 George II, passed in 1752, is in force in this state. It is admitted that this question is not raised by the record, the question being whether a beneficiary can be an attesting witness, and not whether an attesting witness can take an interest under the will; but it is of such great interest to the bar, and of such vital importance to the parties interested in this action, that counsel on both sides have argued the question very frilly with the hope that the court might express an opinion thereon. The part of the statute referred to that is material to the present case is in the following words: “That any person shall attest the execution of any will or codicil, which shall be made after the twenty-fourth of June, 1752, to whom any beneficial devise, legacy, estate, interest, gift or appointment of or affecting any real or personal estate, other than and except charges on lands, tenements or hereditaments, for payment of any debt or debts, shall be thereby given or made, such devise, etc., or appointment, shall so far only as'concerns such persons attesting the execution of such will or codicil, or any person claiming under him, be utterly null and void; and such person shall be admitted as a witness to the execution of such will or codicil, within the intent of the act of 29 Car. II. “This act shall extend to such of the British colonies in America where the 29 Car. II is by act of assembly made, or by usage received as law; or where by act of assembly or usage the attestation and subscription of a witness or witnesses are made necessary to devises of lands, etc., and shall have the same force and effect in the construction of, or for the avoiding of doubts upon, the said acts of assembly, etnd laws of said colonies, as the same ought to have in the construction of, or for the avoiding doubts upon, the said act in England," etc. Article 25 of the Constitution of this state, 1776, provided that: “The common law of England, as well as so much of the statute law as has been heretofore adopted in practice in this state, shall remain in force, unless they shall be altered by a future law of the Legislature.” It is manifest that the statute in question, which was passed for the protection of innocent beneficiaries in wills, is in force in this state if it has been adopted in practice here, and has never been altered or repealed. — 461 — Has this English statute been adopted in practice in this state? No authorities have been produced, and none perhaps can be found, which are of much assistance to the court in determining this question. The court must, ■ therefore, decide for themselves what is meant by the words in our Constitution—“adopted in practice.” Do they mean some act of the Legislature or the bar, or such a general usage or practice in the profession, as would clearly indicate that the statute was expressly made a law of the state or has been recognized by the bar and courts as such? If that is the meaning of the term then clearly the statute is not and never has been in force in Delaware. Some of the states adopted, by legislative acts, English statutes enacted prior to the Revolution which were applicable to their conditions. In other states such statutes were adopted by actual usage in the practice, and were recognized by the bar and the courts as existing law. It is not contended that the statute in question was ever made a law of the state by legislative enactment, or that there is any evidence that it was ever actually used in practice or recognized and acted upon by the bar and the courts as a law of the state. But it is claimed that the statute may have become a law within the meaning of the Constitution, even if it cannot be shown that it was used or acted upon or was recognized and approved by the bar and the courts as a law of the state. It is insisted that it became a law of the colonies, not only where it was by act of assembly made a law, or by usage received and adopted as such, but also wherever the attestation of witnesses was necessary to devises of land, provided such a law was adapted to the local conditions. It is not, and cannot, of course, be contended that the statute in question was not adapted to the conditions existing in this state at the time of its passage. Therefore, it is argued, the statute, after its passage, became a part of the law of the state, and, not having been repealed or altered by a future law of the Legislature, remains in force. If such is not the case, then, it is insisted, the words “adopted — 462 — in practice” mean a general usage and practice by the profession, or a general recognition and approval by the bar and courts, which would have to be affirmatively shown. If this be so, there are many English statutes, passed before our Revolution, entirely adapted to our conditions, and believed to be in force here, which in fact are not in force because they cannot be shown to have ever been actually adopted into practice in this state. As we have already said, the statute 25 George II has become the law in most states, and it seems to be in harmony with the feeling of the courts in all the states. But wherever it has been made the law it has been done either by legislative enactment or by clear usage and adoption in practice. It has nowhere been held to be in force unless there was tangible evidence of its enactment or adoption. We have the same feeling that other courts have expressed in favor of this or some other law that would make an attesting witness incapable of taking an interest under the will, but we do not think any court has had the feeling that the entire will should fail because one of the beneficiaries was named as an attesting witness. We do not think there is much significance in the fact that, in the revision of the laws of the state made by George Reed, Esq., and contained in Volumes 1 and 2 Delaware Laws, no mention is made of the statute 25 George II. Neither do we think the fact that Nicholas Ridgely, Esq., and Willard Hall, Esq., who were authorized by legislative act January 31,1824, to revise and digest the laws of the state and report to the next General Assembly what “English statutes are in force in this state to the end that the same may be included in the Revised Code,” did not report that statute 25 George II was in force, can be regarded as proof that such statute was not in force. It does not appear that in the making of Hall’s Digest the direction of the Legislature as to English statutes was followed at all, for there is no reference therein to any English statutes. The Digest was meant by its makers to contain the statutes passed by the Legislature of this state; the preface to the work stating: “The object of the General Assembly that this edition shall contain the law as it stands in force upon our acts of assembly has been carefully observed." — 463 — But we do regard as of much significance the fact, that in no revision or codification of the laws of this state, since the Constitution of 1776, has the statute 25 George II been included or referred to; and the further fact, that in no statute of wills, or other statute, enacted since the passage of the act in question, has such act been included, referred to or in any manner recognized as a law of this state. These facts or circumstances, together with the further fact that there is nothing whatever to show that said act was ever adopted in practice in Delaware convince the court that it is not, and never has been, in force in this state. To assume that the statute 25 George II was adopted in practice in this state, or that it became a law merely because it was applicable to existing conditions would, we think, be not only arbitrary but dangerous, because it would be a recognition of all other English statutes passed before our Revolution, as laws of this state, if they appeared to be applicable to existing conditions whether actually adopted in practice or not, and whether known to the bar or not. There is one authority which is in harmony with our conclusion, and that is the part of the report of the judges of the Supreme Court of Pennsylvania on the subject of “the ascertaining of such English statutes as are in force in this Commonwealth,” which contained their “observations, connected with the subject of the report, and tending to explain the principles which have governed them in the execution of the trust which the Legislature have been pleased to confide in them.” 3 Bin. (Pa.) 595. The “observations” deemed pertinent to the present question are the following: “With respect to English statutes enacted since the settlement of Pennsylvania, it has been assumed as a principle that they do not extend here, unless they have been recognized by our acts of assembly, or adopted by long-continued practice in courts of justice. Of the latter description there are very few, and those, it is supposed, were introduced from a sense of their evident utility. As English statutes they had no obligatory force, but from long practice they may be considered as incorporated with the law of our country.” — 464 — Another principle acted upon by the judges was this: “Whenever our own Legislature had enacted a law on the same subject on which an English statute was to be found, it has been supposed that the English statute had no force here, even though it contained more extensive provisions than our own act of assembly; because it was reasonable to presume, that our assembly were acquainted with the English statute, and designedly omitted some of its provisions.” The Pennsylvania act provided: "That the common law, and such of the statute laws of England as have been heretofore in force in the said province, shall be in force, except as is hereafter excepted.” Our constitutional provision is somewhat different from the Pennsylvania act, but the principles adopted by the judges in reaching their decision would be applicable in either case. After a very careful consideration of this case, which has been so fully and ably argued on both sides, the court are of the opinion, 1. That the attesting witness, who is a beneficiary under the will in this case, is a credible witness within the meaning of the statute, and competent to prove its execution. 2. That the statute 25 George II, is not in force in this state, the same never having been enacted by the Legislature or adopted in practice. 3. That the decree of the register should be sustained and the appeal dismissed.