Bryant v. Bryant

The sole contention is that the will here involved, devising and bequeathing all of the testatrix’s, property to a named person, is invalid on the ground that the-legatee’s wife, one of -three subscribing witnesses, was incompetent as such. The common law provided that the spouse of a legatee was not competent to act as an attesting witness to the execution of a will. 57 Am. Jur. p. 240, § 315; Caesar v. Burgess, 103 Fed. 2d, 503, 507, et cit.; 25 A. L. R. 305. However, under the Witness Act of 1866 (Ga. L. 1866, p. 138; Code, § 38-1603 et seq.) and the provisions of the Code then and now existing as to the attestation and probate of wills, no person is disqualified from being a subscribing witness by reason of interest. Jones v. Habersham, 63 Ga. 146. The provision of the Code, § 113-304, that a husband may be a witness to a will by which a legacy is given to his wife, first appeared in the Code of 1863 as § 2386, prior to the Married Woman’s Act of 1866 (Ga. L. 1866, pp. 146, 147; Code, § 53-502), and changed the common law above mentioned so as to render the husband, though not the wife,, competent as a subscribing witness to a will under which the spouse is a legatee, but since the Witness Act of 1866, supra, she-is likewise competent. Accordingly, the judgment sustaining the: *748 general demurrer to the motion to set aside the probate of the will must be affirmed.

Judgment affirmed.