Hays v. Ernest

Citations

• 32 Fla. 18

Syllabus

<p>1. A will executed in tliis State in the year 1885, purporting to devise both real and personal estate within this jurisdiction, but signed by only two subscribing witnesses, is valid as to the personalty if valid in other respects, though inoperative as to the real estate. The statute did not undertake to prescribe the mode of executing- wills in reference to the disposition of personal property, further than to regulate the revocation of such wills when written, and the establishment of nuncupative wills. In other respects the common law rule controlled the execution of wills concerning personal property, and, according to this rule, such wills when written, required no witnesses to their execution.</p> <p>2. The statutory regulation (McClellan’s Digest, page 987, £ 9), that “no will shall be admitted to probate upon the oath of any person appointed executor or executrix thereto, when it shall appear by said will or otherwise that said person so appointed is interested in the estate therein bequeathed, or any part thereof,” has reference to the admission of wills to probate in common form, and without reference to testimony over the contests of wills.</p> <p>3. Under Section 1, Chapter 19S3, laws of 1874, an executor named in a will who is also a legatee therein, is a competent witness on an issue of devisavit vel non. as this issue does not involve a transaction or communication between the testator and such legatee. Heirs at law, next of kin and devisees are all competent witnesses as to the execution of the will.</p> <p>4. Where competent testimony has been excluded, and the appellate court can not say what would have been the result had such testimony been admitted and considered, the judgment will be reversed.</p>