Undoubtedly, the object in giving this trivial legacy was to guard against the witness taking a portion of the estate under the provisions of sec. 9, by which a child omitted in the will may have its share of the estate, unless such omission was intentional, or such child had had its due proportion of the estate during the life of the testator.

The decree of the judge of probate is reversed, and a decree is to be entered that the will be affirmed.

WALTON, BARROWS, DANFORTH, LIBBEY, and SYMONDS, JJ., concurred.

HAWKINS v. HAWKINS ET AL.

54 Ia. 443. 1880.

ROTHROCK, J. W. H. Hawkins was directly interested in the will as a legatee, and being a subscribing witness thereto he could derive no benefit therefrom, unless there were two other competent and disinterested witnesses. Section 2327 of the Code provides that "no subscribing witness to any will can derive any benefit therefrom unless there be two disinterested and competent witnesses to the same."

The only question to be determined then is, was T. C. Hawkins, the wife of W. H. Hawkins, a disinterested and competent witness? That she was a competent witness in the general sense cannot be disputed. By section 3636 of the Code it is provided that "every human being of sufficient capacity to understand the obligation of an oath is a competent witness in all cases, both civil and criminal, except as herein otherwise declared." A married woman, then, is a competent subscribing witness to a will. She is not within any of the exceptions contained in the Code. If it be said that she is not competent to establish that part of the will which makes her husband a legatee, the answer is, by section 3641, the husband or wife are, in all civil and criminal cases, competent witnesses for each other.

Is the wife a disinterested witness? No person offered as a witness is incompetent by reason of his interest in the event of the action or proceeding, except in certain cases. Code, sec. 3638. This section is qualified by section 2327, which requires that a legatee or devisee, who is a subscribing witness to a will,

can derive no benefit therefrom unless there be two disinterested and competent subscribing witnesses. Our statute nowhere defines the interest which disqualifies a witness. See the general statute upon the subject. No such definition was necessary, because, as we have seen, interest does not, in general, disqualify. We are, then, to inquire whether, under the common law, modified by our statute making the wife a competent witness, has she such an interest in the legacy given by the will to her husband as to exclude her as a witness? In 1 Greenleaf on Evidence, sec. 386, it is said: "This disqualifying interest, however, must be some legal, certain, and immediate interest, however minute, either in the event of the cause itself or in the record as an instrument of evidence in support of his own claims in a subsequent action. It must be a legal interest, as distinguished from the prejudice or bias resulting from friendship or hatred, or consanguinity, or any other domestic or social, or any official relation, or any other motives by which men are generally influenced; for these go to the credibility."

Again, in section 390, it is said: "The true test of the interest is, that he will either gain or lose by the direct legal operation and effect of the judgment. It must be a present, certain, and vested interest, and not an interest uncertain, remote, or contingent." See, also, Cutter v. Fanning, 2 Iowa 580.

We think that by these rules the wife was a disinterested witness. She had no present, certain, and vested interest in the legacy given to her husband. It was remote and contingent. It will be observed that this is not a devise of real estate. The will contemplates that whatever real estate there may be shall be sold to pay the legacies. Now the wife has no present, vested interest in such a legacy to the husband. It is his own to dispose of at his pleasure, and there are many contingencies which may intervene to prevent the wife from ever acquiring any part of it.

We think that the wife was a competent and disinterested witness, and that the court erred in excluding her testimony as applicable to the legacy of her husband.

*See next case.

Reversed.

WINSLOW v. KIMBALL.

25 Maine 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, sec. 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.

CHAPTER VII.

FORMALITIES REQUIRED IN REVOKING WILLS.*

General Requisites of Revocation.†

RICH ET AL. v. GILKEY.

73 Me. 595. 1881.

Appeal from judge of probate.

Sylvanus Rich, having made his will dated April 9, 1872, made a codicil thereto in March, 1879, giving to his niece, Mary A. Gilkey, during her life, the income of certain property of the value of $10,000. On March 16, 1880, he destroyed this codicil, and made another, by which he made a different disposition of the property, which by the former codicil was given in trust to pay the income to his niece. He died April 18, 1880. In proceedings for probate of his will, the judge of probate upheld the destroyed codicil, and admitted it to probate. At the trial of the cause on appeal from his decision, the following entry was made by mutual agreement of the parties: "Referred to the presiding judge, who may decide all questions upon the merits as affected by considerations of expediency and compromise, including costs, and enter all and any decrees necessary to carry his decision into effect."

PETERS, J. When this cause was referred to me for decision, in view of the fact that the jury trial might be broken off by the sickness of a juror, I hardly comprehended the extent of the duties which have been cast upon me. I had supposed my office would be performed by the recommendation of some sum which the estate had better pay, and the other party had better receive, in a spirit of compromise, than to pursue the case to an end upon the strict application of legal principles and a

* See Secs. 987-996, Vol. 7, Cyclopedia of Law.

† See Sec. 988 et seq., Vol. 7, Cyclopedia of Law.

close sifting of all the facts that might be produced in evidence. Had I anticipated that the respective parties would adhere so closely as they have to supposed legal rights, I should not have so readily taken upon myself a self-imposed responsibility. Having, however, examined and considered all the issues of law and fact sufficiently to form as satisfactory conclusions as it is probable I ever could arrive at, I file in the case the following opinion:

There is no doubt that Capt. Rich, the testator, destroyed the codicil in favor of Mary Gilkey in his lifetime. The questions of fact are there: First. Was the testator at the date of the destruction of the codicil possessed of testamentary capacity? Second. If he had testamentary capacity, was he induced to do the act by undue influence? It would not be inconsistent to find that a testator was not possessed of sufficient mental capacity to make a will, and also that he was operated upon by undue influence. The questions of law are: First, whether, if the codicil was destroyed by the testator, while lacking the possession of testamentary capacity, it can be legally upheld and probated by means of oral evidence; and, secondly, whether the same result follows, if the destruction was induced by undue influence alone.

An examination of the questions of law comes first in the natural order. I feel clear in the belief that a person who has not testamentary capacity cannot revoke a will in any manner whatever. He can neither make nor unmake a will. A codicil stands upon the same footing as a will. A will, legally made, stands until legally revoked. It cannot be revoked by any act of destruction, unless the act is done with an intention to revoke; and a person not having testamentary capacity cannot have an intention to revoke a will; he is legally incapable of it. In such case the burning of the will can have no effect whatever, provided the contents can be clearly and certainly proved by other evidence. The written instrument may be burnt, the surest and best evidence of the will may be thus destroyed, but the will itself, if a draft of it can be proved, outlives the act of destruction, and the testamentary dispositions stand. This is a common principle in the law, applicable to the loss or destruction of papers and records generally. For instance, A