Winslow v. Kimball , 25 Me. 493 ( 1846 )

The opinion of the Court was drawn up by

WhitmaN C. J.

—This is an appeal from the decree of the judge of probate, for this county, approving the will of A. G. Winslow, deceased. The instrument was subscribed as usual by three attesting witnesses. But one of them was the wife of a legatee in- the will. And it is insisted, that this is not a case within the Rev. Stat. c. 92, § 5, rendering bequests to subscribing witnesses void, as the wife was not a legatee; and it must be admitted, that, nominally, she was not; and, upon a construction strictly literal, the ground relied upon might be tenable. But statutes are to receive such a construction as must evidently have been intended by the legislature. To ascertain this we may look to the object in view; to the remedy intended to be afforded; and to the mischief intended to be remedied. The object in view in the provision in question clearly was to prevent wills from becoming nullities, by reason of any interest in witnesses to them, created entirely by the wills themselves. No one can doubt, if it had occurred to the legislature, that the case before us was not embraced in the enactment, that it would have been expressly included. It was a mischief of the precise kind of that which was provided against; and we think may be regarded as virtually within its category.

Accordingly, in New York, where the statutory provision, in this particular, is the same as in this State, a devise or legacy to the husband or wife, the other being a witness to the will bequeathing it, is held to be void, upon the ground, as expressed by one of the Judges of the Court there; “ that the unity of husband and wife, in legal contemplation, is such, that, if either be a witness to a will, containing a devise or legacy to the other, such devise or legacy is void, within the intent of the statute and upon the ground, that the statute concerning wills should receive a liberal construction, and one consistent with common sense. Jackson v. Wood, 1 Johns. Cas. 163 ; Jackson v. Durland, 2 ib. 314.

The decree of the Judge of Probate affirmed.