Hudson v. Flood

Citations

• 28 Del. 450

Syllabus

<p>1. Wills—Witnesses—“Credible Witnesses”—Who Are.</p> <p>Rev. Code of 1915, § 4212, declares that no person shall be incompetent to testify in any civil action because a party to the record, or interested in the event of the suit, except that, in actions or proceedings by or against executors, administrators, or guardians, neither party shall be allowed to testify against the other as to any transaction with or statement by the testator, intestate, or ward, unless called by the opposite party. Section 3241 declares that every will must be attested and subscribed by two or more credible witnesses. Held, that the beneficiary of a will was a credible witness, the expression “credible witnesses” being equivalent to competent witnesses; and hence a beneficiary may be an attesting witness.</p> <p>2. Witnesses—Competency—Proceedings—“Action by or Against Executor or Administrator.”</p> <p>A proceeding for the probate of a will is not an “action or proceeding by or against executors or administrators,” within Rev. Code of 1915, § 4212, declaring that persons interested cannot, in an action or proceeding by or against executors or administrators, testify to transactions with or statements by the deceased; and hence a beneficiary of a will, who was an attesting witness, may testify in a proceeding for its probate.</p> <p>3. Wills—Attesting Witnesses—Interest.</p> <p>Rev. Code of 1915, § 3242, declaring that a creditor of a testator, or a person taxable for poor relief, may be a witness to a will, though it provide for the payment of the testator’s debts, or the relief of the poor, having been enacted long prior to the enactment of section 4212, which relieved witnesses from the disability of interest, an attesting witness, who was also a beneficiary of a will, is not incompetent by reason of the earlier statute.</p> <p>4. Common Law—Statutes—Applicability.</p> <p>Act 25 Geo. II, passed in 1752, provided that any attesting witness, to whom any devise, legacy, or interest sha