Will of Johnson

The following opinion was filed May 31, 1921: Owen, J. This is an appeal from an order or decree of the county court of Racine county construing the will of Theodore W. Johnson, deceased. The case was here on a former appeal from an order admitting the will to probate, and is reported in 170 Wis. 436, 175 N. W. 917, to which reference may be had for facts supplemental to those which will appear in this opinion. The will of Theodore Johnson constituted Mrs. L. C. Hahn the principal beneficiary. She was a witness to the will. The question involved on the former appeal was whether she could testify to the execution of the will. It was there held that she could. The question presented on this appeal is whether Mrs. Hahn is entitled to the bequest made to her by the terms of the will. The county court held that — 3 — the devise and legacy to the said L. C. Hahn was and is void because she is a subscribing witness to the will and said will is not attested or subscribed by two other competent witnesses. There is no serious contention but the law as it existed at the time of the death of the testator is the law that governs as to the question whether Mrs. Hahn can take under the will. “A will is ambulatory during the life of its maker. It is, in effect, reiterated as his testament at each moment of his life after its execution, including the last moment, and is governed by the law existing at the1 time when it takes effect, upon the testator’s death.” Will of Kopmeier, 113 Wis. 233 (89 N. W. 134) at p. 239. This fact is mentioned at the outset because it is claimed that the statute which, concededly, controls in this case was amended during the interim between the execution of the will and the death of the testator. That statute is sec. 2284. Brior to the enactment of ch. 128, Laws 1905, that section provided as follows: “All beneficial devises, legacies and gifts, whatsoever, made or given in any will to a subscribing witness thereto, shall be wholly void unless there be two other competent subscribing witnesses to the same; but a mere charge on the lands of the devisor for the payment of debts shall not preyent his creditors from being competent witnesses to his will.” By ch. 128, Laws 1905, that section was amended by voiding gifts made to the husband or wife of a subscribing witness, as well as to the subscribing witness himself, and by dropping out the word “subscribing,” so that it now provides that such devises, legacies, and gifts “shall be wholly-void unless there be two other competent witnesses to the same.” As so amended the section now reads as follows: “All beneficial devises, legacies and gifts whatsoever, made or given in any will to a subscribing witness thereto, — 4 — or to the husband or wife of a subscribing witness thereto, shall be wholly void unless there be two other competent witnesses to the same; but a mere charge on the lands of the devisor for the payment of debts shall not prevent his creditors from being competent witnesses to his will.” It will be seen that the purpose of the statute is to void gifts, made to a witness to a will, so that a subscribing witness may be a competent witness and the will be established by the testimony of the subscribing witness, unless the will cannot be established without his testimony. That, at least, was clearly the purpose of the statute as it existed prior to the amendment of 1905. It is not seriously disputed that such is the present purpose of the statute, but it is contended that the bequest is saved to the attesting witness if there is another person who can testify to facts showing an execution of the will in conformity with the requirements of the statute. This contention is based on the theory that the amendment dropped out the word “subscribing” and hence the bequest is now saved to a subscribing witness if there is any other competent witness to the same. It is said that it is not necessary that a competent witness be a subscribing- witness. Our first suggestion in response to this contention is that the phrase “witness to a will,” or any other written instrument, has a well settled meaning not only in common parlance but in the law-. A witness to a deed means a witness who has attached his signature to the deed. A witness to a will means one who has attested the will by subscribing his name thereto. Furthermore, the statute as it now exists requires two other competent witnesses to the will. We take it that the term “competent” as used in this connection means something more than a witness who is free from the many disqualifications visited upon persons by the common law; that is to say, it means not only a person who is under no disability to testify generally in a court of justice, but it means a person who is under no disability to give testimony which will establish the instrument as i the will and testament of the testator. — 5 — It has been the ruling of courts ever since thfe statute of frauds required certain instruments to be in writing and signed in the presence of witnesses, that the testimony of the subscribing witnesses constituted primary evidence of the execution thereof by the parties bound thereby, and that no other evidence of such fact could be given until the person seeking to establish the instrument demonstrated his inability to produce the subscribing witnesses because of their death, their absence from the jurisdiction of the court, or that they were non compos mentis. It has been universally held that until such showing has been made on the part of him who seeks to establish the instrument, secondary evidence could not be introduced to show the fact of execution. 2 Wigmore, Evidence, § 1287 et s'eq., and note to Garrett v. Hanshue (53 Ohio St. 482) 35 L. R. A. 321, where the general rule upon this subject is summed up as follows: “The general rule is that the attesting witness to a written instrument is regarded as the person who must be called to prove its execution when he can be had, as it is said that the parties selected him to enable them to refer the execution of the document to him in case any question should arise over its execution. His evidence is regarded as the best evidence, and must be used when the execution is in dispute.” This is a general rule applicable to all written documents which by law are required to be attested by subscribing witnesses. From the time when wills were required to be in writing and attested by subscribing witnesses it has been commonly understood that the will must be proved by the testimony of a subscribing witness if he could be produced, and that other or secondary evidence could be resorted to for that purpose only after a showing that the subscribing witness was dead, or beyond the jurisdiction of the court, or was. then non compos mentis. Questions have arisen in some jurisdictions as to whether it was necessary to call all of the subscribing witnesses. Thornton’s Ex’rs v. Thornton’s Heirs, 39 Vt. 122; Denny — 6 — v. Pinney, 60 Vt. 524, 12 Atl. 108; Chase v. Lincoln, 3 Mass. 236. But it has never been doubted that the production of some of the subscribing witnesses was necessary if their presence in court could be secured. In the chancery courts of England it was held that all subscribing witnesses must be produced. As that was the only court which could by its decree establish a will, that doctrine has been held to be the common law of this country; and, except where modified by statute, the law is that all of the subscribing witnesses to a will must be produced unless the impossibility of producing them is made to appear. Thornton’s Ex’rs v. Thornton’s Heirs, supra; 1 Redfield, Wills, pp. 34-39. The only statute of this state bearing upon this question is sec. 3788, which provides that, if no person shall appear to contest the probate of a will, the court may in its discretion grant probate thereof on the testimony of one of the subscribing witnesses only, and that if none of the subscribing witnesses shall reside in this state at the time fixed for proving the will, or if one or more of them shall have gone to parts unknown, and the court shall be satisfied that such witness, after due diligence used, cannot be found, it may, in its discretion, admit the testimony of other witnesses to prove the sanity of the testator and the execution of the will and may admit proof of his handwriting and of the handwriting of the subscribing witness. This is the only modification of the common-law rule requiring all of the attesting witnesses to be called, to be found in the statutes of this state, and it is a clear recognition that the testimony of the attesting witnesses is indispensable to the establishment of a will if they can be produced at the hearing or trial. This brings us to the question whether a mere bystander is a competent witness to a will.' In this case the subscribing witnesses, including Mrs. Hahn, testified at the trial upon the question whether the writing propounded was in fact testator’s will. Two or three bystanders also testified that — 7 — they were present at the time the will was signed, and testified to a number, if not all, of the facts requiréd by statute ■for the legal execution of a will. Now it is said that these bystanders constituted competent witnesses to the will, by reason of which fact there were two other competent witnesses to' the will besides Mrs. Hahn, satisfying the .calls of sec. 2284, so that the bequest to her does not fail. When-the will was propounded for probate a contest was interposed. It could not be admitted upon the testimony of one of the subscribing witnesses. If one only were produced the will must be denied probate. The question immediately confronting the proponents of the will was the production of the subscribing witnesses or a showing that they could not be produced. As a matter of fact they were both produced and both testified. But supposing they had not testified? Could the testimony of these bystanders have been introduced? Universal authority answers the question in the negative. Their testimony would constitute what the courts call secondary evidence of the fact of execution, and coúld be introduced only upon a showing that the primary evidence could not be produced. Under the circumstances, therefore, their testimony was incompetent and inadmissible, and they were not competent witnesses to' show the fact of a valid execution of the will. The conclusion seems irresistible that these bystanders were not witnesses to the will, much less were they competent witnesses. They witnessed a mere, transaction. To become what in common parlance as well as law is known and understood as a witness to the will required their identification therewith by the subscribing of their names thereto. While they may have been able to testify to the fact that the testator, signed this document under certain circumstances and in a certain manner, that in nowise identified them with the will so that they may be said to be witnesses to the same. But it is asked, What was the purpose of the legislature — 8 — in dropping out the word “subscribing” in its amendment of sec. 2284, Stats., by ch. 128, Laws 1905? One very good answer to this inquiry is that the legislature undoubtedly considered it mere surplusage, which in fact it was, because under the law existing at that time a competent witness to a will must have been a subscribing witness. It is by no means unusual for the statute to use the mere term “witness” to a will when it is plain it means a “subscribing witness” to the will. That is evident from the last part of sec. 2284, which was unaffected by the amendment of 1905, providing: “but a mere charge on the lands of the devisor for the payment of debts shall not prevent his creditors from being competent witnesses to his will.” Who will doubt that the words “competent witness” as there used, both before and after the amendment, meant a subscribing witness ? When the word “subscribing” was dropped out of the preceding similar expression in the first part of the section it harmonized with • the expression used in the last part of the section. Another instance of where the legislature refers to the subscribing witness to a will by the use of the mere term “witness” is sec. 3292. As a matter of fact, not only statutes but text-writers and judges commonly refer to the subscribing witnesses to a will as “witnesses.” But whether we are correct in our assumption that the legislature dropped out the word “subscribing” because it was mere surplusage, we cannot ascribe to the legislature a purpose of working such a radical change in the law as would result from the construction contended for by appellant. In the first place, the inquiry suggests itself, how, and by whom, and when is it to be determined whether a mere bystander is in fact a witness to a will? Is he a witness to a will because, perchance, he sees a testator sign his will and no more ? Is he a witness to a will because he hears the testator declare the document to be his will and request the witnesses to sign the same, but does not see them sign ? Is — 9 — he a witness to a will if he sees one of the attesting witnesses sign, but sees no more ? In order to constitute him a witness to a will, must he be able to testify to all the facts showing a legal execution of the will ? And if so, when,, and where, and how is his status in such respect to be established? It will ofttimes happen that there will be no occasion for his giving his testimony in court, as where there is no contest, unless, forsooth, this amendment be held to operate to do away with the necessity of producing attesting witnesses to the will upon the probate thereof. Unless his testimony be given sometime during the course of the proceeding upon issues raised or some legitimate subject of inquiry, how is the court to tell whether he was a witness to the will or not? Is the witness at sometime to submit to a moot interrogation and cross-examination to enable the court to say whether he was in fact a witness to the will ? Of course if he is to be held competent to take the place of a subscribing witness upon the hearing for the probate thereof, then it may be adjudged from his testimony so given; but is it to be held that the legislature contemplated such a radical change in the law by such inconspicuous action? Did the legislature intend, by the mere dropping out of the word “subscribing” in sec. 2284, to obviate the necessity of calling subscribing witnesses to establish the will, and thus do away with a principle firmly intrenched in the common law and tacitly recognized by the statutes of this state above quoted ? The presumption in construing statutes is against any radical change of legislative policy. It is presumed that there is no intention to depart from any established policy of the law; to innovate upon fundamental principles. 2 Lewis’s Sutherland, Stat. Constr. (2d ed.) p. 931, § 499. . • The amendment by which the word “subscribing” was dropped out of sec. 2284 made t\yo changes in that section. •It disqualified the wife or the husband of a subscribing witness, in addition to the witness himself, from taking — 10 — under the will. It also- omitted the term “subscribing.” If the omission of that word is to- have the effect for which appellant contends, it was by far the more important of the two changes and worked a more radical change in the existing law. Nevertheless, the title to the bill resulting in ch. 128, Laws 1905, made no mention of this feature of the bill. It was entitled: “An act amending sections 2284 and 2285 of the statutes of 1898 and making valid wills containing beneficial provisions in favor of husband or wife of a subscribing witness by making such provisions void.” Not a word as to qualifying bystanders; not a-word as to constituting mere bystanders witnesses to a will; and not a word as to obviating the necessity of producing subscribing witnesses to establish the will. We cannot think the legislature had in mind any such sweeping change or innovation. Had such been its purpose it certainly would have dignified it by some mention of it in the title to the act. Upon these considerations we cannot impute to the legislature the purpose suggested by the appellant. We do not think it was the intention to change the law with reference to the probate of wills or the competency of witnesses in the least. We do not think it was the intention to designate as witnesses to a will a class of persons who had never before been so regarded since wills were required to be subscribed by attesting witnesses. A case very similar to this arose in Iowa ( Will of Boycus, 23 Iowa, 354), where the same conclusion was reached. By the Court. — Judgment affirmed. Rosenberry, J., dissents.