1. The statute does not require a will to be signed or sealed in the presence of the subscribing witnesses, nor that they sign in the presence of each other (G. L., c. 193, s. 6), although this is usual, and generally advisable. The testator may have sufficient reasons for not disclosing the fact that he has made his will. Swinb. Wills 27. His acknowledgment that the seal and signature are his, with a request to the witnesses to attest the instrument, is sufficient. Osborn v. Cook, 11 Cush. 532. The fact that the will in this case was signed, sealed, and witnessed as such in the presence of the testator and subscribing witnesses, was evidence from which the jury might find that the will was attested by the subscribing witnesses at the request of the testator.
2. Prior to the passage of the act of 1857 (c. 1952), the contestant of a will was excluded from testifying on the trial of an appeal by reason of his interest. The general rule of the common law, then in force here, was, that a party to the record in a suit, and persons directly interested in the result of a suit, could not testify. The rule was founded partly on the general expediency of avoiding the multiplication of temptations to perjury. 1 Gr. Ev., s. 329. Our statute, first enacted in 1859, reads thus: "No person shall be excused or excluded from testifying or giving his deposition in any civil cause, by reason of his interest therein as a party or otherwise." G. L., c. 228, s. 13. "Neither party shall testify in a cause when the adverse party is an executor or administrator, or an insane person, unless the said executor, administrator, or the guardian of the insane party elects to testify, except as provided in the following section:" "When it clearly appears to the court that injustice may be done without the testimony of the party in such *Page 348 case, he may be allowed to testify, and the ruling of the court, admitting or rejecting his testimony, may be excepted to, and revised." G. L., c. 228, ss. 16, 17. In Moore v. Taylor, 44 N.H. 370, 375, we said, — "The reason why the exception was made, that where one party is an executor or administrator, and did not elect to testify, the other party should not testify, was, to place the parties upon an equal footing, and not to allow the living party to a trade or transaction to be a witness to it when the other party to the same transaction, being dead, cannot testify." And in Chandler v. Davis, 47 N.H. 462, 464, decided in 1867, after the enactment of the amendment which now constitutes section 17, we said, — "Where the deceased had personal knowledge of the matter in dispute, and might, if living, be a witness, it would be unequal and unjust to allow the survivor to testify, inasmuch as the other party, being dead, could not contradict or explain the evidence." Also (on p. 465), — "But, as a general rule, when the deceased had knowledge of the facts, and might, if living, be a witness, it would be unequal and unfair to allow the survivor to give his uncontradicted and unexplained account of the transaction. * * * But we think that for ordinary cases, the safe guide and the decisive test is found in the inquiry, whether the deceased, if alive, could testify to the same matters." These observations have been approved in numerous subsequent cases. Harvey v. Hilliard, 47 N.H. 651; Brown v. Brown, 48 N.H. 90; True v. Shepard, 51 N.H. 501; Stearns v. Wright, 51 N.H. 600, 611; Fosgate v. Thompson, 54 N.H. 455; Hoit v. Russell, 56 N.H. 559; Page v. Whidden, 59 N.H. 507, 511; Bailey v. Harvey,60 N.H. 152; Burns v. Madigan, 60 N.H. 197; Cochran v. Langmaid,60 N.H. 571; English v. Porter, ante 206. In these cases the matter in dispute, or the transaction about which the deceased, if living, might testify, was in relation to some contract entered into, or tort done or suffered by the deceased in his lifetime, the cause of action accruing in the lifetime of the deceased party. In the action prosecuted after his decease, his executor or administrator was a party in his representative capacity; but we think the reason which forbids the surviving party to testify in that class of cases, unless the executor or administrator elects to testify, is equally applicable in a trial of an appeal upon the probate of a will. The executor represents all the devisees and legatees, and prosecutes or defends the appeal in their interest. In a certain sense, also, he may be said to represent the testator, who can no longer speak for himself. The right of a person to dispose of his estate at his pleasure is destroyed or endangered, unless some one shall act as his representative when it is offered for probate. It is the duty of the executor to cause the will to be proved, or file it in the probate office with his refusal in writing to accept the trust. G. L., c. 194, s. 3. He has sufficient interest in the estate of the testator to give him a right under the statute to claim and prosecute an appeal from a *Page 349 decree of the probate court refusing to admit the will to probate. Shirley v. Healds, 84 N.H. 407; Richardson v. Martin, 55 N.H. 45. The probate of the will does not give him any interest or title either to things in action or possession; for he has the whole title and interest by the will, and not by the probate. Hensloe's Case, 9 Coke 38, a.; Webster v. Spencer, 3 B. Ald. 363. The property in the goods is vested in him before probate. Com. Dig., Ex'r, B. 9; Bac. Abr., Ex'rs, E. 14. "Before probate of the will, not only is the person named as executor seized of all the personal estate of the deceased, as trustee of the legatees and others, but he is the representative of the whole estate disposed of by the will. He is not only the sole trustee for all persons having an interest under the will, but he is the only legal representative, of the estate of the deceased. As such, it is his duty to cause the will to be proved, and he is aggrieved in his rights and in his property by any decree which divests him of his title in the estate of the deceased under the will." Fowler, J., in Shirley v. Healds, supra, 412; Wiggin v. Swett, 6 Met. 197.
The testator must be represented in court by some one, and the executor is the person appointed by him to represent him in the execution of his will. He is necessarily made a party in the probate of the will as executor. Unless he is regarded as executor for the purpose of establishing the will, he is not a party, and has no right to appear. The same injustice that the statute seeks to prevent in other actions in which the executor is a party, by excluding the surviving party from testifying, will often be done in the trial in an appeal upon the probate of a will, if the contestant can testify to matters about which the testator, if living, might testify, and perhaps contradict or explain the testimony of the contestant. A literal construction of the statute includes this case. "Neither party shall testify in a cause when the adverse party is an executor, * * * unless the executor * * * elects to testify," c. The contestant is a party, the executors are the other party, and the appeal is a cause. The spirit and reason of the statute, being to prevent injustice, exclude the contestant, because the testator's lips are closed in death. Even in matters of accounting at common law, the admission of a party was not a matter of right. It was permitted in no case where, from the position of the parties, an unfair advantage would be given by it to one party over the other. 3 Gr. Ev[.], s. 338; Page v. Whidden, supra.
Nash v. Reed, 46 Me. 168, decides that the heirs of a testator who contest the probate of his will are not excluded as witnesses "as heirs of a deceased party," as being within the exception in the statute, which provides that "no person shall be excused or excluded from being a witness in any civil suit or proceeding at law or in equity (including special proceedings before courts of probate), by reason of his interest in the event thereof as party or otherwise, except, at the time of trial, the party prosecuting, or the *Page 350 party defending, or any one of them, is an executor or an administrator, or made a party as heir of a deceased party." Me. Rev. Sts., c. 82, ss. 78, 83, 84.
Millay v. Wiley, 46 Me. 239, was an appeal from a decree of the probate court, allowing the will of the testator. At the trial of the appeal, the executor was called by his counsel as a witness, and was excluded. It was held, that a person named in a will as executor is not "a party prosecuting or defending," within the meaning of the statute, so as to exclude him as a witness. The court said, "He [Wiley] never has been executor at any time, and never may be."
In McKeen v. Frost, 46 Me. 239, which was an appeal from a decree of the probate court allowing a will, it was held, that a person named as executor in a will is not really and legally such until the will is proved, and he has given bond; and in a contest as to its execution, he is not within the exception of the statute. The court said, "If the will should not be approved, he never becomes an executor."
In Rhode Island, under a statute which provides that "When an original party to the contract or cause of action is dead, or when an executor or administrator is a party to the suit, the other party may be called as a witness by his opponent, but shall not be admitted to testify upon his own offer, or upon the call of his co-plaintiff or co-defendant, otherwise than now by law allowed, unless a nominal party merely" (R. I. Gen. Sts., c. 203. s. 32), it has been held, that a party appealing from a decree of a court of probate establishing a will and admitting it to probate is not disqualified from testifying upon his own offer. Among other reasons given for the decision is this, that the operation of the decree admitting the will to probate is suspended by the appeal, except so far as it admits the executor on giving bond to collect, receive, and take possession of the estate of the testator, and it is not therefore as an executor that the appellee is a party to an appeal, for he has no capacity as executor for any purpose except to collect, receive, and take possession of the estate of the testator. Hamilton v. Hamilton, 10 R. I. 538.
The Massachusetts statute (Mass. Gen. Sts., c. 131, s. 14) is materially different from ours, and the Missouri statute is said to be identical with that of Massachusetts. Shailer v. Bumstead, 99 Mass. 112, 130, and Garvin v. Williams, 50 Mo. 206, are not, therefore, in point.
In Georgia, a legatee on probate of a nuncupative will which is caveated by the heirs at law is a competent witness in favor of the validity of the will. The term "other party to the contract," used in the statute, is held not to include an executor of a will. Brown v. Carroll, 36 Ga. 568; Deupree v. Deupree, 45 Ga. 415, 424.
In Pennsylvania, by the express terms of the statute neither a party nor any person interested is excluded from testifying in this *Page 351 class of cases. Bowen v. Goranflo, 73 Penn. St. 357; Frew v. Clarke, 80 Penn. St. 170, 179.
In Tennessee it has been held that a contest over a will is not a suit by or against an executor in such a sense as to bring the parties within the exception in the statute, which provides that "In actions or proceedings by or against executors, administrators, or guardians, in which judgments may be rendered for or against them, neither party shall be allowed to testify against the other to any transaction with or statement by the testator, intestate, or ward, unless called to testify by the opposite party." Orr v. Cox, 3 B. J. Lea (Tenn.) 617.
However much these cases and the reasoning of the opinions may conflict with the views we have expressed, the question can hardly be regarded as an open one in this state. In Lord v. Lord, 58 N.H. 7, this precise question, among others, was raised at the trial; but the law was regarded as so well settled that no mention was made of the point in the opinion or in the briefs on either side. In this case the will was admitted to probate in the probate court, and the appeal is by the contestant. The appeal does not vacate the decree of the probate court allowing the will, nor the decree appointing the appellees executors. The decree remains in force from the time it was made, unless reversed in this court. G. L., c. 207, s. 12. This provision of our statute may perhaps constitute a sufficient reason why, in construing our own statute as to the competency of the contestant of a will as a witness, we should not follow the decisions in other jurisdictions cited above. Our statute does not exclude a party when injustice would be done by the exclusion. He is not admitted as a matter of legal right. In this case it is proved that injustice would be done by admitting the contestant to testify. In Drew v. McDaniel, Adm'r, 60 N.H. 480, the defendant was a nominal party. The defence was made by the plaintiff's brothers, one of whom claimed title to the mortgaged premises in question, and the other was a creditor of the intestate, and both of whom elected to testify. The plaintiff was rightly allowed to testify under certain restrictions, it clearly appearing that injustice might be done without her testimony. The statute was made elastic that elastic justice might be done in every case, and under the circumstances of each case. There was no error in excluding the contestant from testifying as to conversations and matters occurring between himself and the testator, as to which the latter if alive, could have testified.
3. For the same reason the appellant's testimony in regard to copies of certain letters was properly excluded. If the letters were in the hands of the plaintiffs, he might have called them to the witness stand, and compelled their production if competent. If they were in the hands of persons without the jurisdiction, their depositions might have been taken. The testator, if living, might deny that he wrote the letters of which the papers offered purported to be copies. *Page 352
4. The objection to the appellant's testifying to the condition of certain real estate in Boston having been withdrawn during the trial, the exception to the exclusion of the evidence was thereby removed.
5. The answer of a witness to the question whether the appellant wrote the will of the testator's widow, appears to have been wholly immaterial upon the issue tried, and as it does not appear that the jury was prejudiced by the evidence, the verdict will not be set aside because the evidence was not ruled out.
6. Whether the testimony of Fitzsimmons was the statement of a fact, or the expression of an opinion as to the sanity of the testator, it was admissible. Hardy v. Merrill, 56 N.H. 227.
7. The copy of the record in the Suffolk registry of deeds of a deed from the testator to the appellant was admissible. Homans v. Corning,60 N.H. 418; Forsaith v. Clark, 21 N.H. 409, 422; Harvey v. Mitchell,31 N.H. 575, 582; Wendell v. Abbott, 43 N.H. 68, 77. A document purporting to be a copy of a public registry of deeds, kept in another state, and purporting to be duly made and attested by the proper officer, is prima facie evidence that the person assuming to act as register was such in fact, and that the signature is genuine. For some purposes common convenience regards as sufficient such proof as would come from a registry of this jurisdiction.
8. No exceptions were taken to the instructions given, and it must be presumed they were satisfactory. They were correct, and appear to have been appropriate under the circumstances of this case. The first request related to the extent of mental capacity required for the valid execution of a will. The instructions given upon this point were full, and it is no ground for exception that the instructions were not given in the language requested. Clark v. Wood, 34 N.H. 447. We have no occasion, therefore, to inquire whether the request was objectionable in any respect.
The second instruction requested was in itself correct, and was substantially given, though not in the language of the request.
The third request may as a general proposition be correct, but if given without explanation or qualification might be misleading. It was not limited to mental infirmities, and it is possible there may be mental infirmities that would not "awaken caution." Whether the infirmities in any given case are such as require caution on the part of the jury, is not a question of law. But the request, understood in the sense in which it was probably intended, was covered by the general scope and tenor of the instructions given.
The fourth request was included, in substance, in the instructions given.
The exceptions are overruled, and the
Decree of the probate court affirmed.
BLODGETT, J., did not sit: the others concurred. *Page 353