In re Potter's Will , 89 Vt. 361 ( 1915 )

Haselton, J.

This is a case in which the county court on appeal from the probate court rendered judgment allowing and establishing a certain written instrument as the last will and testament of Fayette’Potter.

The will makes various bequests and then provides that the income from the residuary estate shall go to the town of Pawlet, to be used for making and keeping in repair the highways and bridges of the town, and that, if the income is more than sufficient for these purposes, the surplus shall be used for the support of the schools of the town. There is also a provision for supplying the town with a fire proof vault, bnt the contestant makes no mention of that.

The three witnesses who attested the will were at the time of the attestation all inhabitants and residents of the town, one paid a poll-tax, and one, Charles E. Clark, paid taxes on propérty valued at about $5,000. A part of his property assessed for taxation was real estate.

The exceptions taken and relied on raise only the question of whether any one of the witnesses was incompetent to attest the will by reason of interest. Our statute requires the attestation of a will by “three, or more, credible witnesses,” which means witnesses credible, that is, “competent” at the time of the attestation of the will. P. S. 2734; P. S. 2737.

It is contended that one cannot make, for the benefit of a town, such a bequest as is here made to the town of Pawlet, without giving something to every taxpayer in the town; and that so here Clark, at least, was incompetent on the ground of interest; and that, as is obvious, there is no way to apply P. S. 2738 so as to let the will stand as to the town but not as to the interest of, say, the witness Clark, if he had an interest.

But we think, that, both, on reason and authority, neither Clark nor any of the other witnesses to the will is to be deemed to have been an interested witness. One is not incompetent to attest a will because it contains a benefaction which makes the village, town or city in which the witness resides and pays taxes a better place to live in. Such a benefaction as that here under consideration, may make taxes less, and then again it may awaken a public spirit that will demand improvements requiring for their realization an increase in the tax rate.

No one of the witnesses to this will had a fixed, certain, and vested pecuniary interest in the will, and so no one of them was incompetent because of interest.

Counsel for the proponent has collected some very pertinent cases. Among them are these: Piper v. Moulton, 72 Me. 155; In re Marston, 79 Me. 25, 8 Atl. 87; Haven v. Hilliard, 23 Pick. 10; Hitchcock v. Shaw, 160 Mass. 140, 35 N. E. 671; Goodrich’s Appeal, 57 Conn. 275, 18 Atl. 50; Cornwell v. Isham, 1 Day 35, 2 Am. Dec. 50; Hawes v. Humphrey, 9 Pick. 350, 20 Am. Dec. 481.

Counsel for the contestant argues that all these cases are distinguishable from the case at bar. Of course every case bas its peculiar facts, but we tbink that these cases and tbe one before us are governed by tbe same principle, and tbat tbe principle is a sound one.

Judgment affirmed. Let the result be certified to the probate court.