This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
The state statutes, with few, if any, exceptions, require the signature, or acknowledgment thereof, to be in the presence of two and sometimes three witnesses,79 and also, as just stated, publication of the will as such in the presence of witnesses is frequently required. If there be less than the statutory number of competent witnesses, the will is void.80 The statute usually requires the witness to be "competent" or "credible,"81 and the term "credible" is construed as meaning the same as "competent."82 It is sufficient that the competency exists at the date of the will; and the fact that the witness becomes subsequently incompetent to testify does not invalidate the will, though it may necessitate that the will be proven by secondary evidence.83 In other words, the statutory requirement as to the witnesses necessary to attest the execution of a will is entirely distinct from the question as to how the will shall be proved after the testator's death, though such proof is by means of the attesting witnesses, if they are then competent to testily, and are accessible.84
Will, 75 Vt. 19, 58 L. R. A. 261, 52 Atl. 1053.
79. 1 Stimson's Am. St. Law, Sec. 2644.
80. See Cureton v. Taylor, 89 Ga. 490, 15 S. E. 643; Poore v. Poore, 55 Kan. 687; Johnson v. Delome Land & Planting Co., 77 Miss. 15, 26 So. 360; Simmons v. Leonard, 91 Tenn. 183, 30 Am. St. Rep. 875.
81. 1 Stimson's Am. St. Law, Sec. 2646.
82. Hudson v. Flood, 5 Del. 450, 94 Atl. 760; Gillis v. Gillis, 96 Ga. 1, 30 L. R.. A. 143, 51 Am. St. Rep. 121, 23 S. E. 107; In re Noble's Will, 124 111. 266, 15 N. E. 850; Clark's Appeal, 114 Me. 105, 95 Atl. 517; Amory v. Fellowes, 5 Mass. 219; Combs' Appeal, 105 Pa. St. 158; Brown v. Pridgen, 56 Tex. 124.
83. Brograve v. Winder, 2 Ves. Jr. 636; Gillis v. Gillis, 96 Ga. 1, 30 L. R. A. 14:;, 51 Am. St. Rep. 121, 23 S. E. 107; Fisher v. Spence, 150 111. 253, 41 Am. St. Rep. 360; Warren v. Baxter, 48 Me. 193; Higgins v. Carltou, 28 Md. 115, 92 Am. Dec. 666; Sears v. Dillingham, 12 Mass 358; In re Holts' Will, 56 Minn. 33, 45 Am. St. Rep. 434: Stewart v. Harriman, 56 N. H. 25, 22 Am. Rep. 408; Hon" v. State . 72 Tex 281. The statute so provides in a number of states. 1 Stimson's Am. St. Law, Sec. 2647
84. Cheatham v. Hatcher, 30
The competency of an attesting witness is, as a general rule, determined by the consideration whether the witness is a person competent to testify in a court of justice in regard to the will, and questions have frequently arisen as to the competency of particular persons at common law, and under modern statutory provisions. At common law, a 'beneficiary under the will was not a competent witness, because, by the rules prevailing in courts of justice, one interested in litigation could not testify therein.85 Since this rule had the effect of frequently invalidating a will merely because a witness had a small interest thereunder, it was provided by statute that the testamentary provision in favor of the witness should be void, and that he should be regarded as a competent witness.86 In this country there are statutes of a more or less similar character in most of the states, it being usually declared, as in England, that the devise or bequest to the witness shall be void, but frequently with a provision giving such witness what he would have taken, in the absence of the will, by descent or distribution, to the extent that this does not exceed the devise or bequest.87 A mere charge upon land in favor of a witness for the payment of debts due him will not, however, in most states, affect his competency.88 And the statute also, in effect, frequently provides that the witness shall not lose the benefit of such a provision if there are enough witnesses without him.9 In a few states a witness to a will is no longer regarded as disqualified by reason of his beneficial interest thereunder, since the adoption of statutes allowing even interested parties to testify in judicial prograt. (Va.) 56, 32 Am. Rep. 650; Trustees of Theological Seminary of Auburn v. Calhoun, 25 N. Y. 422; Carlton v. Carlton, 40 N. H. 14.
85. 1 Jarman, Wills, 69; Holdfast v. Dowsing, 2 Strange, 1253.
86. 25 Geo. II. c. 6; 7 Wm. IV.
And 1 Vict. c. 26, Sec. 14.
87. 1 Stimson's Am. St. Law, Sec.Sec. 2650, 2651.
88. 1 Stimson's Am. St. Law, Sec. 2648.
89. 1 Stimson's Am. St. Law, Sec. 2650; 1 Woerner, Administration, Sec. 41.
Ceedings.90 An executor named in the will is not usually regarded as so interested, by reason of his right to commissions, as to be disqualified as a witness thereto.91 In two or three states, however, a different view obtains.92
At common law, a husband or wife is incompetent as a witness in regard to any matter in which the other has a pecuniary interest,93 and it has accordingly been decided that the husband or wife of a devisee or a legatee is not a competent witness to the will.94 Modern statutes, however, removing the disability of the husband and wife of a party in interest to testify, have in some states been construed as removing the incompetency as an attesting witness to a will,95 and the same effect has in one state at least been given to a statute
90. See White v. Bower, 56 Colo. 575 136 Pac. 1053; Leitch v. Leitch 114 Md. 336 79 Atl. 600; In re Wiese's Estate 98 Neb. 463, 153 N. W. 556, L. R. A. 1915E, 832.
91. Comstock v. Hadlyme Ecclesiastical Soc, 8 Conn. 254, 20 Am. Dec. 100; Meyer v. Fogg, 7 Fla. 292, 68 Am. Dec. 41; Davenport v. Davenport, 116 La. 1009, 114 Am. St. Rep. 575, 41 So. 240; Wyman v. Symmes, 10 Allen (Mass.) 153; Sears v. Dillingham, 12 Mass. 358; Geraghty v. Kilroy, 103 Minn. 286, 114 N. W. 838; Stewart v. Harriman, 56 N. H. 25, 22 Am. Rep. 408; Children's Aid Soc. v. Loveridge, 70 N. Y. 387; Snyder v. Bull, 17 Pa. St. 54; Coalter v. Byan, 1 Gratt. (Va.) 18; Richardson v. Richardson, 35 Vt. 298.
92. Tucker v. Tucker, 27 N. C. 161, (as regards personal property) ; Jones v. Grieser, 238 111. 183, 15 A. & E. Ann. Cas. 787 & note, 87 N. E. 295. And the disqualification has been held to extend to the wife of an executor. Fearn v. Postlethwaite, 240 111. 626, 88 N. E. 1054; Huie v. Mc-connell, 47 N. C. 455.
93. See the discussion and criticism of this rule in 1 Wig-more, Evidence, Sec. 600 et seg.
94. Windham v. Chetwynd, 1 Burrows, 414, 424; Sloan's Estate. 184 111. 579, 56 N. E. 952; Sullivan v. Sullivan, 106 Mass. 474; Rucker v. Lambdin, 12 Smedes & M. (Miss.) 230; Hodgman v. Kittredge, 67 N. H. 254, 68 Am. St. Rep. 66i. 32 Atl. 158; Gid-dings v. Turgeon, 58 Vt. 106, 4 Atl. 711.
95. Hawkins v. Hawkins, 54 Iowa, 443, 6 N. W. 699; In re Holt's Will, 56 Minn. 33, 22 L. R. A. 481, 45 Am. St. Rep. 434, 57 N. W. 219; Lippincott v. Wikoff, 54 N. J. Eq. 107, 33 Atl. 305.
Modifying the common law doctrine of unity of interest of husband and wife.96
A statute invalidating a provision in favor of a witness in order to render the witness competent has occasionally been construed to apply to a provision in favor of the husband of a witness.97 Such a statute has not, however, usually been given such a construction.98 In a number of states a devise or legacy to the husband or wife of a subscribing witness is expressly made void by the statute.99