Cochran v. Brown , 76 N.H. 9 ( 1911 )

It was held in Hodgman v. Kittredge, 67 N.H. 254, that the wife of one who received a beneficial interest under a will was not a credible witness thereto (P. S., c. 186, s. 2), and that section 3, chapter 186, Public Statutes, did not apply in such case. In Stewart v. Harriman, 56 N.H. 25, it was held that the wife of an executor who received no beneficial interest under the will was a competent witness thereto, and that the fact that the executor would receive compensation for his services was not such an interest as would disqualify him or his wife. The question is whether either would have been at common law a competent witness at the time of attestation to proof of the will, regardless of modern legislation as to the competency of witnesses. P. S., c. 224, s. 21; Weston v. Elliott,72 N.H. 433, 438.

To the general rule that an interested witness could not testify there were many exceptions. An interest in the question merely, and not in the event of the cause, did not exclude a witness. Neither was a witness excluded whose interest was uncertain, remote, and contingent. Weston v. Elliott, supra, 440, 441. These rules were not always correctly or logically applied. Cases are to be found where the amount of a witness' interest was confused with its character. White Mts. R. R. v. Eastman, 34 N.H. 124; Perkins v. Pitman, 34 N.H. 261. But this is not a sound reason for illogically applying the rule at this day, and admitting the witness whose interest is of a certain character in one case, and excluding him in another where his interest is of exactly the same character, but may be greater in degree. The amount of interest goes logically to the weight of the evidence; the character of the interest, to the competency of the witness.

As it is the law of this state that the expectation of payment for a service to be performed does not render a witness incompetent, the amount of compensation cannot exclude the witness, whatever bearing it may have on the weight of his testimony. At the time this will was signed, it may have been clear that by the will the executor would receive less than the law would give him. It may have been thought that he would receive more; but as he could receive nothing except for service performed, his interest to get employment does not render him or his wife incompetent under the rule of Stewart v. Harriman. The witness was credible. An opposite result can be reached only by a reversal of that case or an illogical application of its rule. See Pruyn v. Brinkerhoff, 57 Barb. 176.

Appeal sustained: decree of probate court set aside.

BINGHAM and PEASLEE, JJ., dissented: the others concurred.