Giddings v. Turgeon

The opinion of the court was delivered by Royce, Ch. J. This was an appeal from the allowance of an instrument by the Probate Court as the last will of El [110] mina Turgeon; and the only question presented, is, whether the instrument was so executed that it should be held to be the last will of the said Elmina. It was executed as and for her last will on the 22d day of March, 1884; and by it she bequeathed a certain portion of her estate to Julia M. Partridge. One of the attesting witnesses to the execution of the instrument was H. E. Parti’idge, who was then axxd ever since has been the lawful husband of the said Julia M. The instrument was presented for probate on the 10th day of May, 1884, and oxx the 27th day of June, 1884, the Probate Court adjudged the legacy therein to Julia M. Partridge to be void, and otherwise established .it as the last will of the said Elmina. That court must have held that H. E. Partridge was a competent witxiess to prove the execution of the instrument; for unless he was so competent, the instrumexit could not have beexx established as a will. The only questioxx presexited for our coxxsideratioxi is as to his competency. The common law rules of evidence preclude husband and wife from being witnesses for or against each other ixx a suit where either are parties, or are directly interested in the result. The rule is not based wholly upon the ground of pecuniai’y interest, but is a rule of policy, based on the necessity of protectixig the confidence and domestic harmoxxy which should exist betweexx h'usband and wife, which, without the rule, might be invaded axid disturbed. See Executor of Carpenter v. Moore, 43 Vt. 392, axxd cases there cited. And since the removal of incompetency by the statute of 1852 on accouxit of interest, the coux’t has uxiiformly held that the common law rule resultixxg from the marital relation was in force the same as before the passage of that statute. Executor of Carpenter v. Moore, supra. When the ixistrumexit ixx questioxx was executed, the wife of H. E. Partridge was interested as a legatee in havixxg it established as a will; axxd coxxsequexxtly he was not a competent witness to prove its execution, unless he was made [111] competent by what transpired in the Probate Court in adjudging the legacy given to his wife void, and by virtue of section 2046 R. L. It will be seen by reference to that section that the only persons named in it who can be made competent that would otherwise have been incompetent are those to whom a beneficial devise, legacy, or interest of or concerning real or personal estate, is given by such will. That class of persons is made competent by treating the devise, legacy, or interest, given to them, as void. H. E. Partridge did not come within that class. The legacy that was adjudged to be void was one made to his wife; he'had no interest in it, except such as might result from his marital right. And the right of the wife to hold the legacy when received, as against any claim that the husband might make to it, is secured by sec. 2322, R. L. The right to the legacy was the personal right' of the wife and to be held by her to her sole and separate use, and the husband’s marital right to reduce it to his possession would not attach to it. White v. Waite, 47 Vt. 502. The evident purpose and intention of the staüite was to remove the incompetency on account of interest from the class of persons named in it; and the class intended is clearly and precisely defined. H. E. Partridge had no present or prospective interest in the legacy given to his wife; so that he had no such interest as it was the purpose and intention of the statute to remove. His incompetency rests upon the rule of policy, before alluded to, which excludes the husband as a witness in a matter in which his wife has an interest; and that incompetency the statute has not attempted to remove. The court had no right to adjudge the legacy given to Mrs. Partridge void, for the reason that she did not come within the class named in the statute. She had the same right to the legacy given to her that any other legatee would have; and the act of the court adjudging her legacy void did not affect her right to it, or [112] the interest that she had to have the instrument established as a will. The court might as well adjudge a legacy given to any other person void, and thus remove the disqualification of some other legatee as an attesting witness, as to adjudge the legacy given to Mrs. Partridge void, and by so doing qualify her husband as a witness. The statute relied upon defines with particularity the legacies that maybe held void, and should not be construed to embrace those that are not included in it. If the legislature had intended to confer the power to' declare a legacy given to the wife of an attesting witness void, and thus make the husband a competent witness, it is probable they would have employed some such language to express that intention as is used in the 16th sec. of 1 Victoria, c. 26, by which it is provided that such a legacy, as well as those that are- specified in our statute, shall be utterly null and void. The witness Partridge being incompetent to prove the execution of the will, at the time of its execution, has he been made competent by the virtue of Act, No. 109, approved November 25th, 1884? That act provides that if a person attests the execution of a will, to whose wife or husband a legacy is given, such legacy shall be void, and the person so attesting shall be admitted as a witness, as if such legacy had not been given. This suit was pending at the time of the passage of that act, and to give it the retrospective operation that is claimed by the proponents, would in effect be allowing them to establish the instrument as a valid will, which was invalid at the time of its execution, by the use of evidence which was incompetent to prove its execution at the time it was executed. If Mrs. Turgeon died intestate, her heirs at law had a vested interest in all her estate that was subject to distribution; and the legislature had no right by any change of the rules of evidence to deprive them of that right and prevent [113] them from asserting it by depriving them of the right to insist that the instrument propounded as her will should be proved as the law required at the time of its execution. To give the act the operation claimed by the proponents would, as the record now stands, deprive those opposed to the establishment of the instrument as the will of Mrs. Turgeon of a vested right to make such opposition, and would be contrary to the rules given for the construction of statutes in the cases cited by the learned counsel. The judgment is affirmed and ordered to be certified to the Probate Court.