Kumpe v. Coons , 63 Ala. 448 ( 1879 )

BRICKELL, C. J.

The gift over to the then living children of Mrs. Barclay, on the termination of her estate for life, is a vested, as distinguished from a contingent remainder. “ It is,” says Cb. Kent, “ the present capacity of taking effect in possession, if the possession were to become vacant, and not the certainty that the possession will become Vacant before the estate limited in remainder determines, that distinguishes a vested from a contingent remainder.” The death of Mrs. Barclay could happen, before the death of any of her children ; and if it did, the gift in remainder would immediately vest in possession. — 4 Kent, 232. Her children, consequently, have a direct, immediate interest in any suit or controversy, involving the validity of the will; and, according to the rules of the common law, would be incompetent witnesses in such suit or controversy.

The English statute of wills, 29th Car. 2, required that wills of real estate should be attested by three or four credible witnesses. The term credible was held to mean competent; and it was construed that the witness must be competent at the time of the attestation. If not then competent, the attestation was a nullity, and by no machinery, either of release or assignment, could the witness render himself competent. It was the policy of the common law, as far as possible, to remove from witnesses all temptation to bias or perjury. It was inconsistent with this policy to allow a will to be established or supported by the testimony of persons taking benefits under it. A will, written or prepared by a legatee or devisee, was, and is, regarded with jealousy, not to say suspicion. Attesting witnesses, it was said, were called around the testator, to ascertain and testify to his sanity, to guard him from fraud, imposition, or undue influence. Therefore, the common law, if there were not, without the devisee or legatee attesting the execution of the will, a sufficient number of subscribing witnesses without interest and competent, sacrificed, not the gift or devise to the attesting witness, but the whole will: there was no gift or devise, which could disappoint the heir-at-law of his inheritance, or the ne&t of kin of the shares which the statute of distributions appointed them to take. Inconvenience resulted from the holding of will's of freeholds to be invalid because of the interest of a subscribing witness. Legislation intervened, and the statute of 25 Geo. 2 was passed, which deprived the devisee or legatee of his interest or benefit under the will; and by the deprivation, removing temptations to fraud or perjury, springing from interest, rendered him a competent attesting witness.

The statutes of 29 Car. 2, and 25 Geo. 2, were substantially re-enacted here in 1806. — Clay’s Digest, 596, §§ 1-8. The effect of the statute was, that a-devisee or legatee, who was an attesting witness, was competent to prove its execution, so far as he was not a beneficiary of the testator’s bounty. Perkins v. Windham, 4 Ala. 634. These statutes were carried into the Code of 1852; and that which, by declaring the gift to him void, rendered competent a devisee or legatee who was a subscribing witness, formed section 1608 of that Code.

For many years, there was a tendency in our legislation to enlarge the competency of witnesses, and to remove interest in the event of a cause, as a disqualification. Statutes were enacted, which rendered the plaintiff, in -certain actions, not involving more than a specified amount, a competent witness, unless the defendant on oath controverted his evidence. The Code of 1852 removed infamy arising from a conviction of crime (other than perjury or subornation of perjury), as a disqualification; and also interest in the event of a suit, or a liability for costs, unless the verdict and judgment would have been evidence for the witness in another suit. — Code of 1852, § 2302. This was followed by the act of February 14,1867, which provided that, “ in suits and proceedings before any court or officer in this State, other than criminal cases, there shall be no exclusion of any witness, because he is a party, or interested in the issue tried ; except that, in suits or proceedings by or against executors or administrators (as to which a different rule is not made by the laws of this State), neither party shall be allowed to testify against the other, as to any transaction with, or statement by the testator, or intestate, unless called to testify thereto by the opposite party.” This act repealed, by reference, numerous statutes rendering parties and witnesses having an interest competent, and among others section 1608 of the Code of 1852, relating to devisees or legatees who were attesting or subscribing witnesses. — Acts of 1866-7, 435. It was embodied in the Bevised Code, and remained of force until superseded by the act of March 2, 1875, which now forms section 3058 of the Code of 1876, and reads : “In suits and proceedings before any court or officer, other than criminal cases, there must be no exclusion of any witness because he is a party, or interested in the issue tried, except that neither party shall be allowed to testify against the other, as to any transaction with, or statement by, any deceased person whose estate is interested in the result of such- suit, or when such deceased person, at the time of such statement or transaction, acted in any representative or fiduciary relation whatsoever, to the party against whom such testimony is sought to be introduced.”

These statutes were intended as a revision of the whole subject of the competency of witnesses because of interest, or because of their relation to the suit or proceeding, and to substitute the rule prescribed by them, not only for the rules of the common law, but for the provisions of the former statutes which are expressly repealed by the act of 1867. The great purpose being to enlarge the competency of witnesses, to remove interest, or relation to the suit or proceeding, as a disqualification, it cannot be supposed that, by repealing the statute which rendered devisees or legatees competent attesting witnesses of a will, it was intended as to them tbe common law should be revived, and their exclusion and the sacrifice of the whole will accomplished. That statute was repealed, because, without a deprivation of the gift to them, they were rendered competent witnesses, by the general words of the new enactment, with which it was inconsistent. There is by the new statutes a removal of all the disabilities of parties, or privies, or of others, because of interest, or because of the use which may be subsequently made of the verdict or judgment. There is an exclusion only of evidence of a particular character — of transactions with, or statements by, any deceased person, whose estate is interested in the result of the suit. The reason of the exception of evidence of this character, it has often been said, is, “ that when there is no mutuality, there should not be admissibility — i. e., when the lips of one party to a contract are closed by death, then the other party should not be heard as a witness.” — 1 Whart. Ev. § 463.

An original proceeding in the Court of Probate, for _ the probate of a will, is a proceeding in rem. The purpose is to ascertain the status of the estate of the decedent, and the condition in which he died, whether testate or intestate. It does not assume the form, and is not a suit inter partes, until the heirs or distributees intervene in the mode prescribed by the statute. — Allen v. Prater, 35 Ala. 169; Clemens v. Patterson, 38 Ala. 721; Leslie v. Sims, 39 Ala. 161. The character of the suit is not changed, if there is no contest in the Court of Probate, and the heir-at-law, or next of kin, resort to the statutory remedy by bill in- chancery. That remedy stands in the place of, and is the substitute for proof of the will in solemn form, as practiced in the ecclesiastical courts; or, if the will is of real estate, the action of ejectment at common law. — Johnston v. Glasscock, 2 Ala. 236. In either proceeding — the contest in the Court of Probate, or by bill in a court of equity — the parties claiming under the will are in fact the actors, bound to support it affirmatively, while the heir, or next of kin, is in the relation of a defendant. — Johnston v. Glasscock, supra. In either court, the controversy is between living parties. The estate of the testator is not interested. The interests of those claiming to succeed to it, either by operation of law, or by. operation of the instrument propounded as a will, are alone involved. The estate remains intact, undiminished, whatever may be the result of the controversy, and the subject-matter of investigation is not a transaction toith, or statement by the decedent, but an act of his in its nature ambulatory and revocable, taking effect only by his death. — Shailer v. Bumstead, 99 Mass. 130; Jones v. Larrabee, 47 Me. 474; Sawyer v. Smith, 8 Mich. 411. Upon all questions involved, the parties a^e competent witnesses— competent as attesting witnesses, though devisees or legatees — ^competent to prove any fact which may be involved in the real issue, whether there is a will or not. — Garvin v. Williams, 50 Mo. 206. Such is the policy and purpose of the statutes, which are remedial, and must be so construed that this policy is accomplished. — O'Neal v. Reynolds, 42 Ala. 197.

The sole question involved in the demurrer is the competency of the devisees in remainder, as attesting witnesses. We are of the opinion they were competent. The decree overruling the demurrer must, therefore,, be reversed, and the cause remanded.