I agree with the chief justice, that the right of Judith H. Stewart to have the will proved in solemn form was not lost by the lapse of time, and do not wish to add anything to the reasons he has given for that conclusion.
The second question in the case is, Was Mary A. Harriman, wife of the executor, Henry H. Harriman, a "credible witness" within the meaning of the Statute, at the time of the execution of the will? It is conceded that this depends upon whether her husband was disqualified to be a subscribing witness, by the fact that he was therein named as executor. This question has, therefore, been most elaborately discussed by counsel, who have called our attention to a great number of cases, both English and American, bearing more or less directly upon it. As to the English authorities, they seem to be uniform, that an executor, who takes no beneficial interest under the will, is a good attesting witness. Phipps v. Pitcher, 6 Taunt. 220; Bettison v. Bromley, 12 East 250; Goodtitle v. Welford, Doug. 139; — and see Lowe v. Jolliffe, 1 Wm. Bl. 365. It is said, however, by counsel for the appellant, that these cases may stand well enough, because in England the office of executor is simply a burdensome trust, for the performance of which no compensation is allowed; but that where, as in this state, a commission on moneys coming to the hands of the executor by way of remuneration for his services, and for the care, trouble, and risk not otherwise compensated (Gordon v. West, 8 N.H. 444), he takes such a direct interest under the will as disqualifies him to be a subscribing witness.
The question is, Was the witness incompetent by reason of interest at the time of attesting the will? Gen. Stats., ch. 175, sec. 12; — and see 1 Redf. on Wills 253, n. 1. It seems to me this question is determined in the negative by the plainest application of the rule with respect to disqualifying interest, as laid down in all the books and cases. That rule, as given by Professor Greenleaf, is, — It must be a present, certain, and vested interest, and not an interest uncertain, remote, or contingent. 1 Gr. Ev., sec. 390. That this has always been recognized in this state as a correct statement of the rule is abundantly shown by the numerous cases in our reports, where it was discussed and applied before the statutes removing the disqualification of interest. Mor. Dig., tit. Interest, p. 641, et seq.
Which one of the requirements of this rule is met by the fact, that, if the testator does not revoke his will, nor make another, nor nominate *Page 29 another executor, and the executor lives, and accepts the trust, and is duly appointed to administer by the probate court, and actually enters upon the administration, he will be entitled to commissions?
Was the interest a present interest at the time of the attestation? The answer to this is found in the fact, that the will does not take effect till the death of the testator. Was it certain? The answer to this is found in the fact, that if the executor died before the testator, there is nothing which he has taken by the will that will go to his heir or administrator, or that he can himself dispose of by will. It is inconceivable to me upon what ground, or in what proper sense of the term, all interest can be called vested, which may be recalled and obliterated by him who has created it at any moment after its creation, and before the possibility of its possession and enjoyment has ever arisen. A thing like this, so evanescent and uncertain as almost to elude the keenest legal optics, seems hardly entitled to be called an interest at all, much less a vested interest. The word "vest" is defined, "to give an immediate, fixed right of present or future enjoyment" Bouv. L. Dic. A vested interest can mean nothing else than an interest in respect of which there is a fixed right of present or future enjoyment. The power of a testator over his will to destroy it, make a new one, or appoint another executor, certainly seems to leave narrow ground for the contention that the interest of the executor therein named is a vested interest.
In Smith v. Blackham, 1 Salk. 283, TREBY, C. J., held that "an heir apparent may be a witness concerning the title of the land, but a remainder man cannot, for he hath a present estate in the land; but the heirship of the heir is a mere contingency." This seems to be going about as far as to hold that an executor, to whom a beneficial interest is given by the will, may be an attesting witness. There is no fixed present right in either case, and the contingency as to future enjoyment is to all appearance as great in the case of a legatee or devisee before the death of the testator, as in case of an heir apparent before the death of the ancestor. But I have not seen the doctrine anywhere questioned, and Mr. Greenleaf quotes it as good law. 1 Gr. Ev., sec. 390. This case was in 1699. Nearly a hundred years later, in the case of Bent v. Baker, 3 Term 27, Lord KENYON has some observations on the subject, which I quote. He says, — "I premise, with mentioning what was said by Lord MANSFIELD (Walton v. Shelley, 1 Term 300) on this subject, that `the old cases, upon the competency of witnesses, have gone upon very subtle grounds. But of late years the courts have endeavored, as far as possible consistent with those authorities, to let the objection go to the credit rather than to the competency of a witness;' and if the opinion of so great a judge stood in need of any support, it would have it from the sentiments of Lord HARDWICKE, in the case of King v. Bray (Rep. Temp., Hard., 360), who said, that "whenever a question of this sort arose on which a doubt might be raised, he was always inclined to restrain it to the credit rather than to the competency of the witness, making such observations to the *Page 30 jury as the nature of the case should require. Now, fortified with two such authorities as these, I have no scruples in declaring my concurrence that, wherever there are not any positive rules of law against it, it is better to receive the evidence of the witness, making, nevertheless, such observations on the credit of the party as his situation requires." But in the case which we are considering, after the lapse of almost another century, when the policy of the law has become fixed and unmistakable in the direction of admitting rather than excluding light, I think it is quite unnecessary to invoke even the sensible doctrine thus emphatically announced by HARDWICKE, MANSFIELD, and KENYON; for in none of the oldest cases have I found a witness excluded for interest upon a ground sufficiently subtle to warrant us in holding this witness incompetent.
Richardson v. Richardson, 35 Vt. 238, is exactly in point, and I do not see how a different position can be held without overturning such cases as Sears v. Dillingham, 12 Mass. 358, Comstock v. Hadlyme, 8 Conn. 254, and a multitude of others, decided by American courts, which Judge Redfield (1 Redf. on Wills 258, n. 12) cites in support of his own statement, that "the proposition of the competency of an executor to be one of the witnesses of the will seems to be well settled in the American states."
I have thus far placed my opinion upon the sole ground that the right of the executor, named in the will to administer the testator's estates and so to receive commissions, was not a present, certain, and vested interest, such as to render him, or, what amounts to the same thing, his wife, incompetent. But even admitting that this is not so, — that his right was then certain and fixed, — the appellant has still a further objection, to overcome which seems to me extremely formidable, to say the least; — Did that right constitute an interest of such character as to disqualify? Upon this point, POLAND, C. J., in Richardson v. Richardson, supra, says, — "But if it be regarded as settled at the time that he is to be executor, the only interest he can be said to acquire is to perform a service, for which he is to receive a bare compensation just in proportion to the service performed. This can hardly be regarded as a legal interest, by any rule that has ever been recognized in the law. If a fixed per cent. were given by law, irrespective of the actual services performed, it would be quite a different case." To my mind that is conclusive. But whether it be so regarded or not, it is certainly sufficient to raise a very grave doubt, and such a doubt as makes it the duty of the court to apply the doctrine of the great English judges already quoted, and admit the witness, weighing the fact of inclination or bias which may be thus created in her mind, for whatever it may be worth, against her credit.