Estep v. Morris

Grason, J., delivered the opinion of the Court. This appeal is taken from ah order of the Circuit Court for Prince George’s County, ratifying a trustee’s sale. By an agreement of the counsel of the respective parties, filed in the case in this Court, the purchaser at the trustee’s sale, as well as the exceptants to its ratification, are made parties appellants. The only question raised by the exceptions is whether the executor, who was also appointed by the will, guardian of the infant devisees, was a “credible” witness to the will and competent to prove it in the Orphans’ Court. Section 301 of Article 93 of the Code does not define who are “ credible” witnesses, and we are therefore obliged to look to other sources for its meaning. In the case of Wyndham vs. Chetwynd, 1 Burr., 417, Lord Manseibbd, in considering the competency of witnesses to prove a will, found it necessary to consider the meaning of the word “ credible,” as used in the Statute of 29 Charles II., chap. 3, and he said that it had a clear, precise meaning, and was never used as synonymous to competent, but that when applied to testimony, it presupposes the evidence given. He further says that persons undoubtedly “credible” cannot be witnesses under particular circumstances, while persons manifestly incredible may be and often are witnesses ; and he held that it would he absurd to make the essential solemnity of the will depend upon the credibility of the witnesses. He concludes that the word “credible” “slipped” into the Statute by mistake, or through want of attention to the impropriety of using it, and he thinks that it does not mean competent, because [424] the use of the word witnesses implies persons competent to testify. That distinguished Judge then uses the follow? ing language: “ But what sense soever is put upon the wnrd ‘ credible,’ the Statute leaves the question just as it was ; for it does not declare who are, or are not credible, or (if it is supposed to mean competent,') who are compe-, tent, or who are incompetent.” In that case it was held that creditors were competent to prove the will, although it charged the payment of debts upon the land, the debts having been paid. Judge Chase, in delivering the opinion of the General Court, in the case of Shaffer’s Lessee vs. Corbitt, says that the word “ credible” must be “ rejected as superfluous and nugatory ; for competency is included, in the term ivitness, so that the clause must be considered as if it stood without the word credible.” In that casé the. General Court decided that a legatee under a will was. a. competent attesting witness to the will for the reason that he had no interest under the will at the time of the attestation, the will being ambulatory during the life of the testator^ but that, he was not a competent witness to prove the will without releasing his legacy, and upon appeal the Court of Appeals affirmed, the judgment. Shaffer’s Lessee vs. Corbitt, 3 H. & McH., 532. In the recent case of Higgins, et al. vs. Carleton & Scaggs, 28 Md., 140, this'Court said that “ credible” as used in the Statute means competent to testify at thetime of attestation. If then a legatee, or creditors, the payment of whose debts the will charged upon lands, were competent witnesses at the time of attestation as decided by the cases above cited, there can be no reason for saying that an executor or guardian appointed by the will, was not a competent attesting witness at the time of attestation, under the rules of the common law. He would not, however, be competent to prove the will, for the reason that at that time he had an interest under the will. Sir Wm. Blackstone says,-that all persons in .general are capable [425] of attesting a will as witnesses who are not infamous, insane or so young as to want discretion. 3 Bl. Com.; Shaffer’s Lessee vs. Corbitt, 3 H. & McH., 531. It would seem therefore, that the gommon law required no particular or special qualifications in persons, to enable them to be attesting witnesses to wills. No difficulty was presented until the testator died, the will took effect and the attesting witnesses recalled to prove the will. The rule of the common law then interposed and prevented all parties, who were interested in the matter or proceeding then pending, from testifying therein. To prevent wills from being rendered void by such means, the Statute of 25 Geo. II., chap. 6, was passed, by which all interest given by the will to an attesting witness, was declared to be null and void. This Statute has been adopted in this State, and is to be found in Kilty. And so is the law now in England under the Statute. 1 Vict., chap. 26. At common law, therefore, any person who was not infamous, insane, or so young as to be wanting in discretion, was a competent subscribing witness to a will at the time of attestation, because at that time, no one 'could have any fixed interest under the will, as it might be altered or destroyed at any time during the testator’s life. It was only after the testator’s death that the will took effect, and the rights and interests of legatees and others vested, and they then became incompetent to prove the will by reason of their interest. But, most of the disabilities imposed by the common law, have been removed by the Act of 1864, chap. 109, and especially lias incompetency on account of interest been swept away. Unless that Act excepts from its operation witnesses to wills, we think it clear that parties who take an interest under a will are competent witnesses to prove it. That Act provides, that “No person offered as a witness, shall hereafter be excluded by reason of incapacity from crime, or interest, from giving evidence, either in person [426] or by deposition, according to the practice of the Courts, in the trial of any issue joined or hereafter to be joined, or of any matter or question, or on any inquiry arising in any suit, action or proceeding, civil or criminal, in any Court, or before any Judge, jury, justice of the peace, or other person, having, by law or by consent of parties, authority to hear, receive and examine evidence ; but, that every person so offered may and shall be admitted to give evidence, notwithstanding that such person may or shall have an interest in the matter in question, or in the event of the trial of any issue, matter, question or inquiry, or of the suit, action or proceeding in which he is offering as a witness, &c.” The only objection urged to the validity of this will, is that Morris was an incompetent witness, he having been named by the will, executor and guardian. The due execution of a will, and the testamentary capacity of the testator at the time of execution, are matters to be inquired into by the Orphans’ Court. It is a “proceeding,” or “inquiry” in a “Court” of the State, “having authority to hear, receive and examine evidence” touching the matter of inquiry. Persons offering as witnesses in such, a “proceeding” or “inquiry,” are by the very terms of the Act, made competent, notwithstanding they may be interested in establishing the will. Parties having an interest may also, by the express terms of the Act of 1864, testify on “the trial of any issue.” An executor, legatee or other person taking an interest under a will, is therefore competent to testify in the trial of the issues sent by the Orphans’ Court to any Circuit Court for trial, in order that the Orphans’ Court might be aided and advised by the verdict of a jury in determining whether or not a will offered for probate had been duly executed, and whether the testator had at the time of its execution, mental capacity to make it. If competent to testify on the trial of such issues in the [427] Circuit Court, can it be consistently held that they are incompetent to testify to the same facts, relating to the same subject-matter in the Orphans’ Court, or that they were not competent subscribing witnesses to the will at the time of its execution? We think it clear that, at common law, there could be no incompetency of subscribing witnesses to wills at the time of attestation, on account of interest in or under the will, but that persons who took an interest under the will, were incompetent to prove the will, after the death of the testator, solely because they were interested in establishing the will at the time they offered to testify, and that all incompetency by reason of such interest, has been removed by the Act of 1864, ch. 109. (Decided 2nd July, 1873.) It was very earnestly argued that no persons, except those who are disinterested should be permitted to be subscribing witnesses to wills, in order that testators, who are frequently ill and feeble, and liable to be imposed upon at the time their wills are made, as well as heirs at law, may be protected from undue influences, importunities, impositions and frauds. We have shown that no persons can have an interest under a will at the time of execution, and ordinarily, it is not to be presumed that the attesting witnesses are made acquainted with the contents of the will, when they are called upon to subscribe. Neither Lord Mansfield nor Judge Chase supposed that much danger from imposition or fraud, could result from permitting legatees to be attesting witnesses. But be this as it may, we have no power to alter or modify the law, our sole duty being to administer it as we find it upon the statute book. The order appealed from will be affirmed, and the cause remanded for further proceedings. Order affirmed and cause remanded.