
    
      Elizabeth Filson v. William Filson.
    
    One who was not an attesting witness to a will, but was nominated as executor, and renounced before intermeddling, can prove the execution of the will.
    
      Before O’Neall, J. at Laurens, Spring Term, 1848.
    This was an appeal from the decision of the Ordinary, admitting to probate, in solemn form of law, the last will and testament of Alexander Filson,. deceased. The will appeared to be attested by Dr. William Leak, Dr. M. J. Lockhart, and Milton Pyles. Henry C. Young, Esq. drew the will, which was without date ; it gave the testator’s entire estate to a distant relative, the defendant, whom he had never seen. Mr. Young was appointed the executor. The appellant was the widow of the testator, Alexander Filson, deceased: his estate was large and valuable, worth probably $>30,000. He married the appellant, who was a widow with two children. He must have been nearly sixty years of age when he married her. He left no children at his death.
    2 Rich. 184.
    The witness, Dr. William Leak, testified that he had no recollection whatever of the execution of the will. The signature, “ William Leak,” as one of the subscribing witnesses, he said is his hand writing. If he had not seen the will executed, he would not have subscribed his name as a witness. He and Dr. Farrow, in ’29 and ’30, occupied a part of the same building in which Mr. Young kept his office as an attorney at law. M. J. Lockhart was a student of medicine with them, and Milton Pyles was a student at law with Mr. Young. Lockhart and Pyles have removed to Mississippi; they were both examined by commission. Pyles said he had no recollection whatever of either Filson or the execution of his will: but that he would not have subscribed his name as a witness, if he had not seen the will executed.— Lockhart proved that he, Leak and Pyles saw the testator execute the will, and that they, in his presence, witnessed its execution: that it was executed in Mr. Young’s office, who called upon him to witness the execution.
    Henry C. Young, Esq. upon the death of the testator, renounced in writing, his executorship. He was offered as a witness, he was objected to. The Circuit Judge says, “ I thought him competent. He certainly had, now, no interest, and never had any fixed certain interest; the utmost was that he had a mere possible expectant, pecuniary interest, at the moment of execution, which, according to some of the cases, made him incompetent as one of the attesting witnesses. The case of Durant v. Ashmore is full to the point, that a person named as executor, who, like Young, had renounced before probate, -was a competent witness for every purpose, except possibly attestation.”
    He was therefore sworn, and proved that he drew the will by the testator’s directions, in the year ’29 or ’30 — that he died in ’41 — that he was of sound mind at the execution— that he came from his own house, 12 or 14 miles from the Court House, to havejiis will executed. He (the testator) said none of his property should go into the possession of the family of his wife; he had much rather, he said, it should be his (the witness’s) property. He desired, he said, that his will should be kept secret: he lived bad enough as it was; it would be worse if it were known ; he complained of the mal treatment of his wife and step-daughter. (Miss Dillard.) This witness proved that he saw the testator execute the will, that Leak, Pyles, and Lockhart witnessed it in the presence of the testator. He knew their respective handwritings, and that the name of each of the witnesses to the will was the proper hand writing of the person it purported to be. He proved that, at the moment of execution, he sealed up the will, and at the request of the testator, he kept it so sealed, until after his death, when he placed it in the hands of the Ordinary.
    It was abundantly proved that the testator was a man of good sound understanding; some of the witnesses said he had even an uncommon mind and memory. He was a stout man of his age ; he lived eleven years after he made his will, often spoke of it, told where it was, and its contents.
    The jury were told that to be a legal will, it must be executed by and under no legal disability ; of sound and disposing mind, memory and understanding, in the presence of three or more credible witnesses, who must, in the presence of the testator, subscribe their names as witnesses. His Honor told them that he thought all this had been shewn. For Lock-hart and Young had fully proved all the requisites attending, and required by law, at the execution of a valid will. The other witnesses could not remember, but their attestation was shewn to be genuine, and they had said that they would not have witnessed the paper, unless the will had been executed in their presence. Hence it was to be inferred that they had, in the proper way, witnessed the due execution. In the course of his remarks, he said to the jury that, if all the witnesses had said they had no recollection of the execution, and yet their hand writings subscribed to the will had been proved, it would be thought sufficient. For the law, from the fact of attestation, proved in that way, would raise the same presumption that it would if the witnesses were dead.
    The jury found for the will.
    The appellant moved the Court of Appeals for a new trial.
    1st. Because Henry C. Young, Esq. the executor of the will.of Alexander Filson, was permitted to give testimony as to execution of the said will.
    
    2d. Because two of the subscribing witnesses to the will testified that they had no remembrance of the execution of the said will, and did not know the testator.
    3d. Because his Honor charged, that if all the witnesses were to deny the execution of the will, the law would, if their signatures were proven, raise a presumption that all the requisites were complied with.
    
      4th. Because the verdict of the jury was contrary to the law and the evidence. .
    ARGUMENT.
    
      Perry, for the motion.
    In the case of Taylor v. Taylor, 1 Rich. 531, it was decided that the executor of a will was incompetent to attest the will.- In Durant v. Ashmore, 2 Rich. 191, Judge O’Neall, in delivering the opinion of the Court, and referring to the case of Taylor v. Taylor, says that it is conceded that Law, being named as one of the executors, “ is incompetent to prove the fact of execution.” In the case now before the Court, H. C. Young “ was named as one of the executors” of Alexander Filson’s will. This should have precluded him from giving testimony as to the fact of execution, according to the authority just cited. He was nevertheless sworn and permitted to prove “ the fact of execution.” Had Mr. Young subscribed his name to the will as a witness, he would not have been allowed to speak of its execution. Why? Because he had an interest in the will at the time it was executed. Did he not have the same interest, without witnessing the will, by subscribing his name ? He had to speak of an act in which he was interested at the time he saw it. He was as deeply interested as if he had attested the will.
    The law requires that a will must be witnessed by three subscribing witnesses. They are to testify to the situation of the testator, and the execution of the will. A less number than three was supposed to be insufficient. The fairness of the whole transaction depended on their testimony. But in the execution of Alexander Filson’s will, there was, in reality, only one witness. Two of the subscribing witnesses remember nothing about the will, its execution, or the testator. They prove nothing, and they know nothing. How then can they be called witnesses to the due execution of the will ? In fact it is precisely the same as if they had never witnessed its execution.
    If the third ground of appeal be incorrect, then it will be in the power of any one to forge the signatures of the testator and attesting witnesses ; and in that way establish a will by presumption of law, provided the imitation of the handwriting be not detected. The signature of a witness may be so dexterously forged as to deceive the witness himself. He comes into Court and swears he has no knowledge of the testator or the will. Yet in the language of the Circuit Judge “ the law would raise the presumption” that it was duly executed.
    Mr. Young may yet take upon himself the execution of the will.
    
      Sullivan, contra,
    said Mr. Young was not a subscribing witness, and therefore he was not obnoxious to the statute of 2 George — cited 1 Roberts on Wills, 157, 158 and 159, and the cases there collected; Durant v. Ashmore, 2 Rich. 184 ; and Henderson v. Kenner, 1 Rich. 474.
    2 Rich.’ 184.’
   Wardlaw, J.

delivered the opinion of the Court.

Of the many grounds of appeal, the only one which has been relied upon in argument here, is the first. Under that it has been urged that Mr. Young, who was nominated as executor of the will in question, was examined concerning the execution of the will; that, without his testimony, the jury might not have found the will proved; and that although he solemnly renounced immediately after the death of the testator, he was still an incompetent witness to prove the execution.

This Court is of opinion that the execution of the will was sufficiently proved without the testimony of Mr. Young; and some of the Court think that this is a sufficient answer to the objection which has been made. But others think it was the province of the jury to judge of the sufficiency of testimony, and that it is necessary, in support of the verdict, to sustain the competency of testimony, admitted to go to the jury, which was so influential and positive as that of Mr. Young.

Whether one who was not an attesting witness to a will, but was nominated as executor, and renounced before inter-meddling. can prove the execution, is altogether different from the question whether one nominated as executor is a competent attesting witness: which latter question was considered in Taylor v. Taylor. In Durant v. Ashmore, Mr. Law, who had renounced the executorship, was admitted as a witness in favor of the will; but there a new trial was ordered, — upon another ground to be sure-; and there Mr. Law was an attesting witness, although there were three besides him; and there the authoritative decision seems to be only that he was competent to prove the contents, although the Judge who pronounced the opinion had no doubt that he was equally competent to prove the execution. The question now presented, may then be said not to have been heretofore absolutely settled in this State.

Why was not Mr. Young a witness as fully competent as any other person 1 The statutes regulating the execution of wills do not embrace him, for they speak only of attesting witnesses, and refer questions of their competency to the time of attestation. If he had no interest at the time of his examination, the common law does not exclude him, either for an interest he before had, (as every case where a witness’s interest is released shews,) or for an interest he may hereafter acquire, (as is illustrated by the case of one who, after proving a will, married the chief legatee.) No interest, however minute, could have been imputed to him after his renunciation. If he had intermeddled with the estate, so as to incur any liability, he was not, according to law, entitled to renounce: the renunciation itself is the highest and best evidence that he had not intermeddled. Without adverting to the fact that his renunciation immediately followed the death of the testator, it is enough to see that he, in this respect, stands like any one else, against whose competency there is only the suggestion of a possibility that there may be evidence to shew that he has become liable as executor de son tort. It is true that after the death of an executor, who has received probate, an executor who had previously renounced, may claim grant of probrate; but the chance that an executor who has renounced, may survive his co-executor, and then retract his renunciation and receive probate, is too remote and uncertain to constitute a disqualifying interest.

5 Barn, and Cres. 335: 1 W. Blac. 365. Doug.-.

3 Adams, 272; 2 Eng. Ec. Rep. 527; 3 Hagg. 212; 5 Eng. Ec. Rep. 82.

Various cases might be cited, as furnishing some authority on the question now under consideration, most of which were commented upon in some of the various opinions delivered in Taylor v. Taylor.

Wood v. Teague, Loire v. Joliffe, and Fowler v. Wilford, shew that an executor, without beneficial interest, who was not an attesting witness, has been, at all times, since the statute of frauds was enacted, admitted in England to sustain a will, in a contest between heir and devisee; but those and other such cases may be said to depend upon the principle, that a witness, having an interest in the question, only is admissible in a litigation between other persons, which as to him is res inter alios acta. Thompson v. Denon, Donnell v. Prendergast, shew that before the late Stat. 1 Vict. ch. 26, in the Ecclesiastial Courts in England an executor was allowed to renounce, in order to become a witness, in support of a testament, and then, after proof of the will, to retract the renunciation for the benefit of the estate; but these cases may be said to be inapplicable, where a statute requires attesting witnesses to a testament.

The present decision is therefore rested upon general principles, rather than upon authority, — upon the rule that every one is competent as a witness, who is not liable to exclusion upon any established ground of incompetency.

The motion is dismissed.

The whole Court concurred.

Hotion refused.  