Caw v. Robertson

The question here presented is, whether Caw, the appellant, whose name appears as a subscribing witness to the will of the late Margaret McPherson, is entitled to the legacy bequeathed over to him. For the purpose of determining this question, it is important, first, to consider, whether one who is, in reality, an attesting witness to a will, is, under any circumstances, entitled to a legacy under it. The revised statutes relating to wills of real and personal property, and the proofs of them, provide, first, for wills of real estate and the proofs of them; secondly, for wills of personal property and the probate of them; and then make provisions applicable to wills *of both real and personal property. These latter provisions require that every last will and testament, of real or personal property, shall be attested by at least two witnesses. (2 R.S. 63, § 40.) That portion which relates exclusively to wills of real estate and the proof of them, as originally enacted, required that all the witnesses to such will,

While § 12, above referred to, remained in force, a devise or bequest in a will disposing of real estate, to which the devisee or legatee was a subscribing witness, could be saved by the provisions of § 50, only where the devisee or legatee should be of unsound mind, or should reside out of the state, when the will was proved. This confined to very narrow limits the operation of that section, as applied to wills disposing of real estate; while the different method of proving wills of personal estate, under the provisions of § 26, gave effect to the 50th section in all cases where a single disinterested witness should satisfactorily prove the due execution of the will.

Those two sections of the revised statutes (12th and 26th) were repealed by § 71 of the “ act concerning the Pr00^ *0^ wiUs>” (Laws 1837, c. 460), and the 10th and subsequent sections of that act substituted in their place. By § 10, two, at least, of the witnesses to the will (whether of real or personal estate), if so many are living in this state, and of sound mind, and not disabled from age, sickness or infirmity, from attending, are required to be examined; and provision

By this change of the statutes, I think, the legislature designed to place the proof of wills of real and of personal property (as the formalities required at their execution had before been placed) on the same footing; and also to extend, in regard to wills of real estate, and limit, in regard to wills of personal estate, the benefits of § 50, before mentioned, to the cases where the execution of the will should not be contested, and where proof of its due execution could be made by the number of witnesses indispensable to its validity, without calling upon the witness claiming a beneficial interest under it. These things the act of 1837 accomplishes, and thus secures uniformity, not only in the proof of wills, but in the effect of provisions therein in favor of subscribing witnesses, whether they relate to real or to personal estate, or to both; and removes the incongruity which before existed between §§ 12 and 50. It may have been one object of the change, as was suggested by the learned justice who delivered the opinion in this cause in the court below, to relieve the executors or devisees having an interest in proving the *will, from the labor and expense of producing all the witnesses beyond two; but I' cannot think, that this was the chief inducemeht to the repeal of § 12. The simplicity and convenience of a uniform system in the proof of wills, both of real and personal property, and the more just

If these views are correct, it is obvious, that the intention of the legislature was, to supersede the necessity of examining more than two witnesses, who should satisfactorily prove the will, unless the proof is contested by some one having the right to do so. The 17th section of the same act declares, that no will of real or personal estate shall be deemed proved, unless the witnesses to the same, residing within this state, competent to testify, shall have been examined as hereinbefore provided. When two witnesses are produced and examined, as required by § 10, by whom the will is satisfactorily proved, or when the proof of the will is contested, all the witnesses living in this state, competent to testify, and not disabled, are produced and examined, as provided in § 11, then the requisites of § 17, are complied with, so far as the necessity exists for the production and examination of witnesses.

The court whose judgment is now the subject of review, referred to the 11th section of the act of 1837, rendering it necessary that all the witnesses to a will, living in the state, should be produced and examined, when any one having the right, should contest the proof of the will. This provision cannot prejudice .the appellant ; the contingency provided for in it, has not happened, and cannot, as the will has been proved, without contest, and the appeal day has passed. It is clear, therefore, that a will, either of real or personal estate, can be proved by two of the attesting witnesses, if no one having the right shall contest its proof; and that the rights of an attesting witness, who is a legatee, are saved, in all cases, except where the will cannot be proved without his testimony; *and hence, the question arises, whether the will of the testatrix could not have been proved, without the testimony of

In the case before us, the surrogate, very properly, called the witnesses, in the order in which their names were subscribed, and if the two first called proved the will to the satisfaction of the surrogate, the third should not have been called as an attesting witness. The will of the testatrix should be carried out as far as possible, and when the contingency has happened, that each of two legacies bequeathed by her has been made void, neither reason or law requires that a third should be jeopardized or made void, for no other reason than because two have been lost; especially, when it comes within the saving clause of the same statute that avoided the others.

The appellant, for the purpose of proving that he “ was not sworn as a witness, on the probate of the will, and was not a legal witness” to its execution, offered in evidence the record of the surrogate of the proofs and examinations taken before him, on the proof of the will. The authenticity of the record, so far as due proof of it was concerned, was not disputed; but the evidence afforded by it was objected to, “ as improper and illegal;” the objection was overruled by the surrogate, and the proofs and examinations taken by him on the proof

The proofs show that Chambers and Walker were the only witnesses whose testimony tended in the slightest degree to prove the due execution of the will; that their evidence was sufficient and satisfactory to the surrogate, that all the requirements were complied with in the execution of the will, is clear, or no certificate of the due proof of the will could have been made by him. This being the case, the appellant should not have been sworn as an attesting witness, for the reason that a case had

If, *however, he was not sworn as an attesting witness to the execution of the will, then all doubts as to the question are put at rest. This examination shows that he was not. Chambers and Walker were &worn as witnesses to prove the will; the appellant was sworn “to testify as to the questions which should be put to bim by the surrogate, touching the circumstances of the executing the said will, and how his name came to be attached to said will as a witness.” The surrogate had probably been apprised that the appellant drew the will, and received it from the testatrix, and, therefore, thought proper to examine him, as authorized by § 17 of the act of 1837, to which the oath administered conforms, except that portion of it taken by the appellant to testify as to the questions which should be put to him, “as to how his name came to be attached to the will as a witness.” This oath limited the appellant to the answer to such questions as the surrogate should propound, and did not require nor strictly permit him to testify, except in response to the interrogatories of the surrogate. The oath was not calculated to elicit the material facts ordinarily known by a subscribing witness; and is in no respect such an oath as should be administered to an attesting witness, and was not understood, either by the appellant or the surrogate, to have been administered for the purpose of improving him as such. The oath was not to the appellant to give evidence in the matter depending ; he was not, therefore, called upon to tell the whole truth, which, when told, would be properly classified under the denomination of proofs, but he was restricted to the questions put by the surrogate, which were reduced to writing and subscribed. This was an examination, a9 contradistinguished from proofs, elicited from a witness sworn to speak the whole truth.

The remaining question is upon the respondent’s objection, that the condition upon which the legacy was to be paid to the appellant was “ unreasonable, repugnant and contrary to public policy.” Unreasonable conditions imposed upon an estate devised, calculated improperly to restrain the 'action of the devisee, or abridge ,the rights inseparably incident to absolute ownership, are regarded as repugnant and invalid. In the case before us, no estate had become vested in the church; no rights over the legacy could be exercised by it, and hence none were abridged by the condition. The bequest was to the church, provided the appellant should continue pastor over its people, for seven years to come, but if not, then the sum bequeathed was to be paid to him. The church was not entitled to the bequest, until the expiration of seven years, and not then, unless the appellant had continued his pastoral charge during that period. This construction is quite apparent, from the bequest to the church alone, and is strengthened by the terms of the bequest over to the appellant. The direction to pay is not given to the church, but to the executors, whose duty it was to have retained the legacy until the seven years had expired, or until thp pastoral relations between the appellant

The appellant, therefore, upon the dissolution of the pastoral relations between him and . the Associate Reformed Church of Broadalbin, before the expiration of the seven years fixed by the will, became entitled to the bequeathed over l1™) *with the interest thereon, as decreed by the surrogate; whose decree must be affirmed, and the judgment of the supreme court reversed.

Judgment of the supreme court reversed, and the decree of the surrogate affirmed.