Clark , 119 Me. 150 ( 1920 )

Wilson, J.

The Judge of Probate for the County of Hancock in June, 1918, drafted the will of Mary E. Jordan, who died in June, 1919, a resident of that county. In due course the will was presented 1'or probate in the Probate Court for the County of Hancock.

The Judge of Probate apparently deeming it inappropriate that he should pass upon its execution and the testamentary capacity of the testatrix requested the Judge of Probate for Washington County to sit in his stead at the hearing upon the petition for the probate of the will.

Objection was duly made to the probate of the will on the ground that under Sec. 20, Chap. 67, R. S., a Judge of Probate was prohibited from drafting a will, and it was, therefore, invalid. The will was allowed and an appeal taken to the Supreme Court of Probate. The appellants requested a ruling by the Supreme Court of Probate that the will should not be allowed for the same reason. The ruling was refused, and the decree of the Probate Court was affirmed. The case is now before this court on exceptions to that ruling.

Prior to the enactment of Chap. 312, Laws of 1915, now Sec. 20, Chap. 67, R. S., a will was not invalidated even though it was drawn and witnessed by the Judge of Probate in the county in which the testator resided and died. Patten v. Tallman, 27 Maine, 17. Also see McLean, et al. v. Barnard, 1 Root (Conn.), 462; Ford’s Case, 2 Root, 232. Does Sec. 20, Chap. 67, R. S., prohibit a Judge of Probate from drafting a will?

The prohibition contained in the act and section above referred to reads: “Nor shall any Judge of Probate draft or aid in drafting any document or paper which he is by law required to pass upon.” Is a will a document or paper within the intendment of the prohibition?

The statute being in derogation of the common law must be construed strictly. A Judge of Probate may in connection with the administration of an estate be required to pass upon the validity of a promissory note, but we could not regard it as a reasonable construction of the statute to hold that the legislature intended to prohibit Judges of Probate, most of whom are in the active practice of the law, from drafting promissory notes.

A document drafted as a last will and testament may never become such. The testator may destroy it. If a Judge of Probate should assist in drafting it, he might never be required to pass upon it. The testator may outlive his term of office or might die resident of another county.

The issue appears to be: Did the legislature intend under this act to place in the prohibited class all papers and documents that might in some event come before a Judge of Probate to be passed upon, or only such as by reason of their nature, as petitions initiating proceedings in a Probate Court, or by reason of their being a part of the administration of an estate already pending, as petitions for the sale of land, bonds and accounts, would in the ordinary cause be passed upon by the Judge of that court?

We think the stricter construction must prevail; and until the legislature shall make it clear that a Judge of Probate shall not act as scrivener in drafting a will, it must be left to his own good sense of propriety as to whether he shall act in that capacity.

Entry will be:

Exceptions overruled.