Fisher v. Spence

Citations

• 150 Ill. 253
• 37 N.E. 314

Syllabus

<p>1. Winns— competency of attesting witnesses — husband or wife of devisee. The husband or wife of one to whom a devise or legacy is given by a will is not a competent witness to prove the execution of the will, and is not rendered competent by the release by the devisee of all his rights under the will. Such attesting witnesses are not competent as to devises and bequests made to persons other than to the wife or husband of either of said witnesses.</p> <p>2. Same — subscribing witnesses — statute construed. Section 8 of the Statute of Wills, which declares that “if any beneficial devise, legacy or interest shall be made or given in any will, testament or codicil, to any person subscribing such will, testament or codicil as a witness of the execution thereof, such devise shall, * * * as to such subscribing witness, and all persons claiming under him, be null and void,” has no application to the interests of any persons other than those who are attesting witnesses, and does not declare such interests null and void. Nor does the statute assume to render competent any subscribing witnesses other than those to whom a beneficial devise, etc., was made or given.</p> <p>3. The only devises declared void by this statute are beneficial devises to a subscribing witness. It does not avoid even a devise to a subscribing witness which gives him no beneficial interest, as, for instance, a devise to an executor for the exclusive benefit of other persons. Section 5 of the act relating to evidence does not render a husband a competent attesting witness to prove a will making a devise to his wife.</p> <p>4. Same — “credible witnesses” — statute construed. The expression in section 2 of the Statute of Wills, “credible witnesses,” means competent witnesses. The competency of attesting witnesses to a will is to be tested upon the state of facts existing at the time of such attestation, and not that existing at the time the will is presented for probate.</p>