Chapman v. Brown

delivered the opinion of the court.

This case comes before us by appeal from the probate court of Simpson county. It appears that the late Samuel Brown, of that county, made and executed his last will and testament, disposing of all his real and personal estate, but attested by two witnesses only. The probate court admitted the will to probate as to the personal estate, and on the application of the heirs at law, the court refused to set aside the probate, and from that decision this appeal was taken; and the only question presented for our consideration is, “whether a last will and testament, made and executed under our laws, attested by two witnesses only, is valid, as to the personal estate bequeathed, although invalid as to the real estate?”

Our statute of Wills, How. &. Hutch. Dig. p. 385, sec. 2, provides that “every person aged twenty-one years, if a male, or aged *643eighteen years, if a female, or upwards, being of sound and disposing mind, and not a married woman, shall have power, at his or her will and pleasure, by last will and testament, or codicil, in writing, to devise all the estate, right, title and interest, in possession, reversion or remainder, which he or she hath, or at the time of his or her death shall have, of, in, or to lands, tenements, hereditaments, or annuities, or rents charged upon, or issuing out of them, or goods and chattels, and personal estate, of every description whatever, so as such last will and testament be signed by the testator, or by some other person in his or her presence, and by his or her express directions ; and moreover, if not wholly written and subscribed by himself or herself, be attested by three or more credible witnesses, in case of the devise of real estate; and one or more credible witnesses in case of the devise of goods and chattels and personal estate, in presence of the testator; saving however to the widow of testators, their dower in any estate, real and personal so devised.”

We deem it unnecessary to go at much length into the history of last wills and testaments; of the right and power of persons to make disposition of their lands and goods, to take effect after death. This right or power is held dear by every one. The kings and monarchs, and the priesthood of the Old World, denied to the people this right, in most respects, but gradually relaxed their rules in favor of the subject. Much was gained, as to this right by the great English charters, called charters of liberty, during the reigns of King John and his son Henry the third; and to rescue and restore the power of the subject from the long interruption and oppression of the feudal system, the statutes of the 32 and 34 Henry viii, usually called the statutes of wills, were enacted, empowering every person, having manors, lands, &c., to give and devise them by will in writing or otherwise, by act, executed in his lifetime, &c. These statutes, not having prescribed the form in which it might be done, nor the solemnities with which it should be executed and attested, it was found, that for want of this, frauds were practised; wills surreptitiously obtained, were imposed on people, and lawful heirs were disinherited without, and contrary to the mind and will of the testator; and that was often done by the mere parol testimony of those who were interested, *644or not to be credited. To prevent and remedy this evil, it was enacted by the 29 of Charles the ix, that all devises of lands and tenements, should be in writing, signed by the party, or some person in his presence, by his express direction, and attested by three credible witnesses subscribing it in the presence of the testator, or it should be void. This statute underwent many adjudications in England, according to the circumstances of particular cases. See the cases in Carthew, 1 Ld. Raym. 2 Strange and 1 Burr. And these statutes were further amended by the 25 of George n.

After all, however, there is much complexity in the English system. They have their spiritual courts and their temporal courts; one taking cognizance of the personal, the other of real estate. But in America, we bring all under the same jurisdiction, and give to our people the same power to dispose of the real as of the personal estate, and the entire subject is confided to the same tribunal of justice, the probate court; giving to the subject all the simplicity which the habits and manners of our citizens require, and which is demanded by the principles of freedom and equality which we enjoy.

A will or devise is a gift of one person'.to another, to take effect at the death of the donor; and this power results from the idea of property; and this may be done by one, or by as many instruments as there are donees, or portions of property to be given. Pow. on Dev. 23, 24, &c. Each donee is interested in the gift to him, and not in those to others. A will may be good as to personal, and void as to real estate, and vice versa. It may be good as to some legacies and devises, and void as to others. 8 Bac. Ab. tit. Wills and Testaments, (B.); 15 Pick. 393.

The power of making a will is an important right, and held dear by society. The laws, therefore, respecting this right, are to be construed favorably. The several statutes of wills, both in England and America, were designed to prevent any possibility of fraud and imposition as to the identity and execution of the instrument, and therefore have made the ceremonies of writing, signing, and attesting, essential to the legal existence of the instrument.

Still, however, there are some restrictions placed on the exercise of this right. More evidence is required for the devise of real than of personal estate; to interpose some obstacles, in order *645to keep real estate in the right line of descent; to favor- the heir at law rather than the devisee. However evident it may be -that' the testator did make and declare his will, and however effectual it may be to dispose of any amount of personal estate, yet, if the will be not entirely in the hand writing of the testator, or be not witnessed by three subscribing witnesses, it will not amount to a devise of real estate.

The will in question is attested by two witnesses only, and purports to dispose of both real and personal estate, and we consider it a good and valid will as to the personalty, but not as to the realty. The testator, after making small bequests, viz: five dollars each, to several of his children, provides, that “to my beloved son, Isham Brown, I give all my estate of every kind whatsoever, real or personal, after giving to the other heirs their legal dowry, to wit: all my lands, negroes, all my horses, all my cattle, all my hogs, sheep, &c. Thus it appears that it was the intention of the testator to give nearly his whole estate, real and personal, to his son Isham. But his will being attested by only two witnesses, his intention will be measurably frustrated : those he intended to disinherit, the plaintiff in error and others, will profit by this defect in the number of witnesses to the will, and the intended devisee will be the loser. There seems to be no reason for the complaint of the appellants. How can they say, that the will of the testator cannot be carried into effect? Instead of giving effect to that intention, they are trying to defeat it in toto. This is neither reasonable or just; and proves conclusively to my mind, that the rule we are recognizing and establishing is the true one. We will now consider the objections of counsel to this rule. It is contended that a will void in part, is void in toto: that we must adopt the entire will, otherwise we frustrate the intentions of the testator. It is said that if the testator had known, when he made his will, that it would be void as to part, he would have made it different. We know not how this may be; but we think that if the testator had been aware of the law which requires three witnesses to make his will valid as to his real estate, he would have called in a third witness.

But some courts, it is said, have held this doctrine; and there is some contrariety of decision on this point.

*646We are referred to a case in 2 Root’s Rep. p. 303, decided in 1795, in the state of Connecticut. This case lays down the principles contended for by the appellants’ counsel, three of the judges concurred, but Judge Root dissented, in a very able and lucid opinion, beginning at page 308. It would appear, from the reasoning of a majority of the court in that case, that in that state, they had rules of decision peculiar to Connecticut. They say, “that, although by some British authorities, executors, and even legatees who have released their legacy, and no party in the suit have been admitted, under certain circumstances, (for there are adjudications both ways,) as witnesses to prove a will, yet such adjudications are incompatible with the laws of Connecticut; the simplicity of which excludes the possibility of introducing that speculative, metaphysical refinement which so much embarrasses the British courts, without deranging our whole system,” and they say farther, that “an inhabitant of a town cannot be a witness to establish a will, which made a small devise to the town for the benefit .of posterity,” and again, “that witnesses interested in the question are, in England, not excluded, but in Connecticut they are.”

Judge Root says, “was ever a deed made to the state, or to a town, and witnessed, the first by citizens of the state, the second by the inhabitants of the town, adjudged void for want of legal attestation, or ever questioned? I think not. The case of a will is more to be favored.”

But it seems to me that the question did not fairly arise in the case reported in Root. The will was written-by one of the executors, and not by the testator, and all the witnesses to the will were deemed by the majority of the court to be interested, and were excluded; so that the will could not be proved for any purpose; and the opinions of the judges were merely speculative.

Judge Root’s views on the subject conforms to ours; and we consider his decidedly the better opinion; and that the opinion of the majority of that court is entirely erroneous in every particular. Indeed it seems strange that in the enlightened state of Connecticut, near the close of the last century, that such opinions of the rules of evidence were entertained.

The case in 12 Mass. 543, cited by the plaintiifs’ counsel, is not in point. And, moreover, it is said in that case, that the 9th sec*647tion of the statute of wills in Massachusetts, provides that in. a will purporting to dispose of both real and personal estate, but not so executed as to pass the former, shall not be allowed as a testament of personal estate only. See page 552. It is sufficient to state in answer to this case, that we have no such provision in our statute of wills; and that the insertion of such a provision .in the Massachusetts statute, shows that without it the law would be as we consider it here and in England. See 15 Pick. 393; 4 Vesey, 200, note; 6 Taunt. 369; 22 Wend. 490, 495; 14 Wend. 265; 5 Paige, 318; Roberts on Wills, 151; 20 Wend. 564; 3 Rand. 373; 1 Stew. & Por. 30; 1 Hill’s N. Y. Rep. 463.

By our statute of wills, How. & Hutch. 388, sec. 15, it is provided that “if any person shall be a subscribing witness to a will, wherein any devise or bequest is made to him, and the will cannot be otherwise proved, the devise or bequest to such witness shall be void, and he or she compellable to appear and give testimony on the residue of the will, in like manner as if no such d,e-vise or bequest had been made.”

This shows conclusively that our legislature considered that a will may be void in part, and good in part.

In the case of Vicks Executor, v. McDaniel, reported in 3 How. 337, it is decided that invalid or void bequests do not invalidate the will. The same doctrine has been repeatedly so held in this court since that case. And in the case of personal estate, it has been decided that a residuary legatee will take the part or portion which shall be found undisposed of, by such invalid or void bequest, in preference to the heir at law, but that the rule would be different as to real estate.

There is frequently much difficulty in arriving at clear and satisfactory conclusions in construing last wills and testaments. There is one rule, however, which has been wisely adopted, and that is, to carry into effect the intention of the testator, as far as it can be done consistently with the rules of law. If in the exercise of his right to direct the disposition of his estate, or who shall enjoy it after his death, his intentions should be measurably frustrated by his ignorance of the law, yet the courts will do what appears reasonable and just, in giving effect to so much of his will as the law will sanction. Judgment affirmed.