ARK.] ROCK AFELLOW• v. ROCKAFELLOW. 563 ROCK AULLOW V. ROCKAiELLOW. 4-4209 Op . ui . ton delivered April 6, 1936; WILLS-1 --RIGHT TO MAKE.—Every persOn of lawful. age and of sound and disposfng mind has the right to dispose of his estate by Will, subject only to the independent right of the State to prescribe the circuinstances and conditions under which a will may .be executed. WILLS—COMPETENCY OF ATTESTING WITNESS.—An attesting witness who is a beneficiary therein may, by voluntarily releasing all interest therein, become competent to testify (Crawford *;gi Moes' Dig., § 10,533); and the husband of a wife who is'a belle&
564 ROCKAFELLOW V. ROCKAFELLOW: [192 ciary in a will may be a competent subscribing witness thereto, notwithstand. ing § 4146, Crawford 8.; Moses' Dig., subd. 3, since . the statute has no application to proceeding to probate a Will; and where the wife has disclaimed the bequest to her in the will, her husband is a competent witness in a • dontest, Sinee she is ' nolonger a party to the proceeding. • Appeal. from GaHand Circuit Court; Earl Witt, Judge; reversed. . • • • Witt d Wi . tt,OweyscC Ehrman and E. L. ,Malavey, fOr appellants. • Murphy d Wood, , for : appellee. JoHNsoN, C. The .purported last will and testa ment of Mrs. M. J..Rockafellow of. Garland . County, Ark-ansas, .was on January 10, 1934, presented to :and probated:in common form before the probate court of Gar, land County. Mrs. Rose Scraggs.and F._ J.. Carroll were the; subscribing. witnesses to the will,, and they subscribed the :necessary . affidavit of due . proof. of execution....On Jannary. 13, 1934, William B., .Rockafellow, appellee, here, instituted, this contest of the. will ,:of; lqrs. M. J. Rockafellow •in the probate conrt of Garland County and joined as defendants thereto Charles A...Rockafellow, Nell ; M.. Rockafellow, :his wifc,,. F. J. Carroll, and Helen Carroll, his wife, and Charles . Francis Carroll, the son of F. J. and Helen . Carroll, : • . Prior to the trial of the contest in . the . probate:court, F. J. Carroll filed his renunciation of any interest under or by virtue of the terms of the will. The probate court upon a hearing of the contest determined that the instrument was the last will and testament of Mrs. M. J. Rockafellow. The will in . substance provided, after directing that the testator's debts be paid: That no property should be sold or exchanged , nntil three years after her death; it then . made an outright gift to Charles A..Rockafellow of $20,000 providing that this was ' tb re-imbnrse him for the services he had rendered to her and for money he had, paid out in her behalf, and for certain property . which his father had directed that- he should have after his mother's death; It -further -stated .that he . had worked for her for the ,past 25 : Years, loOking after lier proporty and business affairs, and had . attended
s AR K . ROOTc AFELLOW V. ROCK A:FELLOW" 565 to All the management of same, leasing her property, collecting her rents, and performing all such services for her, for which he had received only nominal remuneration. The will:then recited that William B. Rockafellow and his wife had lived with , Mrs. M. J: Rockafellow for Many years, during all of which time she had ffirnished them food and. clothing, and that she had made advancements to William B. Rockafellow in the amount of several' thousand dollars, which debt she thereby canceled. The will then made bequegS .to 'Nell Rockafellow and Frances Rockafellow, the wives of , Charles Rockafellow and William B. Roaafellow, respectively, in the sum of $1,000 each. 'The will then gave the residue of the estate, .share and share alike. to Charles A. Rockafellow and William B. Rockafellow. It ,also bequeathed a house and lot at 240 Whittington Avenue tO Francis and Helen Carroll and provided that Charles A. Rockafellow should pay for the .educntion of Charles Francis Carroll out of funds bequeathed to him.' . Contestants appealed from the adverse judgment of the probate court to the circuit Court of Garland County. Prior . to the trial of the contest . Of the will in the circuit court, Helen . Ca:yroll, wife of the Witness, F. J. Carroll, filed her renunciation of any interest under the terms . of the Will and thereupon her name was stricken frOni 'the record as a party defendant. • Upon' trial of the contest proceedings in the circuit .court,'it Was 'determined tha F. J: Carroll . was not h competent subscribing witness tO the will of Mrs. M. J. RockafelloW; and_ there not being • two other competent subScribing witne§ses to the execution of s-aid will; di: rected the jury to return a verdict in favor of Contestant§ and . from a Consequent judgment this appeal comes.. ••• Under the 'recited facts the legal query arises—was P. J. Carroll a competent subscribing witness to the will of Mrs. M. RockafellOw? This legal ciuery will be 'conSidered from the following viewpoints : First,. is a, subscribing Witness to a will rendered incompetent because designated therein a ' s a beneficiary? Second, if not, is such , subscribing witness rendered incompetent because his , wife is de§ignated in the will as a beneficiary? •
566 ROCKAFELLOW V. ROCKAFELLOW. [192 As a preliminary to consideration of the questions propounded it may ibe said that every person of lawful age and of sound and disposing mind has the untram-meled right to dispose of his estate by will, subject only to well-defined limitations prescribed by law. Taylor v. McClintock, 87 Ark. 243, 112 S. W. 405; 28 R. C. L., ti .tle, Wills, § 10. Moreover, each State has the independent right to prescribe the circumstances and conditions under which a will may be. executed. See U. S. v. Fox, 94 U. S. 315, 24 L. Ed. 192. By the statutes of this State two subscribing witnesses to the exeCution of a will are necessary to its validity. In reference to attestation, subdivision four of § 10,494 of Crawford & Moses' Digest provides : "There shall be at least two attesting -witnesses, each of whom shall sign his name as a witness, at the end of the will, at the requeSt of the testator." Where one of the necessary subscribing or attesting witnesses to a will is a beneficiary therein, such bequest may be voluntarily released and thereby such subscribing witness becomes competent. Section 10,533 of Craw-ford & Moses' Digest provides : "If any person shall attest the execution of any will to whom any legacy or bequest is thereby given, and such person before giving testimony concerning the execution of such will shall have been paid, or have accepted or released, or shall refuse to accept such legacy or bequest upon tender thereof, such person shall be admitted as a witness to the execution of such will, and the credit-of such witness shall be subject to the consideration of the court and jury," and by § 10,529 of Crawford & Moses' Digest such necessary subscribing witness may be compelled to so testify. This section provides : "If any person shall be a subscribing witness to the execution of any will wherein any beneficial devise, legacy, interest , or appointment of real or personal estate shall be Made to such witness, and such will cannot be proved without the testimony of such witness, such device, legacy, interest or appointment shall be void, so far only as concerns such witness, or any person claiming under him, and such person shall be a competent
ARK.] RoCKAFELLOW v. RocKAFELLOW. 567 witness, and may be compelled to testify respecting the execution of such will, in like manner as if no devise or bequest had been made to him." Froin the statutes just quoted it definitely appears that the commoh-law incapacity of a necessary subscribing witness because of a bequest to him in the instrument has been removed, and that by virtue of said statutes such subscribing witness is now made competent unless an inconsequential bequest to the subscribing witness . ' wife incapacitates him. It follows from this that F. J. Car-roll is a •competent subscribing Witness to the will of Mrs. M. J. Rockafellow unless the bequest to Helen Car: roll, wife of the witness, F. J. Carr011, renders him incompetent.- Does 'the bequest to Helen Carroll render her husband, F. J. Carroll, incompetent as a subscribing witness? Appellant contends that the bequest to Mrs. Helen Carroll . is void by reason of §§ 10,529 and 10,533 of Craw-ford .& Moses' Digest, cited supra. But if not, that the prohibition contained in § 4146 of Crawford & Moses ' Digest inhibiting husband or wife testifying for or against eaeli other has no application to the probation of a will and cite in support of these contentions : Jack-son, etc. v. Woods, 1 Johns. Cas. (N. Y.) 163 ; Jackson V. Durland, 2 Johns. Cas. (N. Y.) 314; Woodbury v. Executor of Collins, 1 Desaus. (S. C.) 424; Komfman ray, 182 Ind..372, 105 N. E. 466; Lantning v. Gay, 70 Kan. 353, 78 Pac. 810; and that' when F. J. Carroll was tendered as a witness in the contest proceedings in the , circuit court his wife was not a party thereto, nor interested in the subject-matter thereof. On the other hand appel-lee asserts the converse of appellants' contentions and cites Sullivan v. Sullivan, 106 Mass. 474, 8 Am.. Rep. 356, and numerous other cases following its lead. Under the : Constitution and laws of this State, we believe neither line of cases cited by the respective parties have controlling effect. The New York cases cited and relied upon by appellants are grounded upon the common-law unity of husband and wife, and this rule has but little support under the Constitution and laws of this State. Section 7 of art. 9 of the Constitution of
568 ROCKAFELLOW V: ROCKAFELLOW. [192 1874 -declares.that the •rearand personal property of a femme covert in this State acquired either , before or after marriage shall be and remain her separate . estate so long.as: she may, *choose and, may, be devised or conveyed by her the same as if she were a femme .sole, and that . the .same . shall not be subject•to her husband's debts. Following the lead of this constitutional . mandate, legis# lation has been enacted.from time.to time, by the ; Legislature of this State making further inroads into the com, mon-law rule of unity of husband and wife. Section 5577. Of Crawford & Moses' Digest . being a fair example of the inroads thus accomplished. It provides : "Every married woman and every woman who may in the futnre become married shall have all the rights to contract and be contracted with, to 8ue and be sued, and in law and in equity shall enjoy all: rights and be subjected. to 'all the laws of. this State, as though she were a fenvme sole; . provided, it is expressly declared to be the intention' of this act to • remove all statutory disabilities of married women as well as common-law disabilities, : such as the di§ability to act as execntrix or administratrix as ProVided by § 6 of Kirby's Digest, and other statutory disabilities." It maY : now be safely said that there remains only the skeletonof the'cónimon-law rule of 'Unify of husband and wife in this' State, and it follows that the legal reasoning upon . which:the . New York -cases and' those which folloW 'their lead nre grounded do 'nbt 'exist under the ConstitutiOn . and. laws :of this State ;• therefore, .these cases .are without controlling effect. . Neither can we agree with appellee's contention that Sallivan v. 'Sullivan.; supra, and other cases following its lead are .decisive of the question here under consiclera .tion. • The Sullivan case is grbunded upon statutory enactments of the State of lylassachusetts: It is expressly pointed out,in the opinion that, "* * * And the statutes reMoving the . objections to the competency of.witnesses on the grounds of interest and of the relation of husband and wife are expressly declared not to apply to attesting witneses to a will or codicil." • By § 2 of the schedule to the Constitution of 1874 it is provided that in civil action§ no. witness shall be
AR ROCKAFELLOW V. ROCK APELLOW 569 excluded because he• is a party to a snit , or interested in the . issnes to' be tried, and there is no saving clanse, in fa. vor of husbands or wi:ves as there appears to- have been . in : the State . of Massachnsetts a't the time the Sullivan case • was decided. The only• statutory limitation -existing : in this .State against husbands and 'Wives testifying for or against each other will be found in §41 , 46 : of Craw-ford & MoseS' Digest as amended by. act 230 of 1931, and 'it provides : `.` All persons •except those enumerated herein shall'be incompetent , io• testify . ; " Thint Husband and wife, for or against •each other, or concerning any •commUnication made by one' to the other during the marriage, whether called as . a witness while , that relation subsist or• afterwards, but either 'shall be allowed tO testify for the other in regard . to any•business transacted by the one for the other in the capacity of agent. • It• definiteiy appears from the eXpress terms of the: statute quoted that in a civil . action in this State all persons may testify except those expressly excluded,: and husbands . and-wives being excluded rests upon the conditions therein expressed. In other words we constrne this statute to mean that in civil -actions husbands and Wives are' incompetent, to testify for . or against - each other save on the Conditions therein stated.. Of course the c • onclusions here announced do . not impair : the rule ok testimony, in criminal -cases between. husbands and wives (see Jenkins v.• State,. - 191 Ark. 625, 87 S. W. (2d) 78), as' the rule in such cases Tests upon other reasons. Is thiS 'rule applicable to the • probate • of • last wills ;and testaments ? • * ' A civil Action is' defined by § 1028-of CrawfOrd Moses' Digest as follows: * . "A civil action is an ordinary prOceeding in a- court of justice by one Tarty against another for the enforcement . or protection of a private right; or the redress: or prevention Of a 'private wrong'. It may also be 'brought for the recoverY of a penalty-or forfeiture." By 1029 every other remedy in a civil' caS e is. a • special proceeding, and in application of these sections we have held that guardianship proceedings .are speCial. See Nelson v: Cothling; 89 Ark.. 334; 116 S. W. 890. •
570 ROCKAFELLOW V. ROCKAFELLOW. [192 Under constitutional provisions and statutes not materially different from ours, the Supreme Court of Kan-sas in Lanning v. Gay, supra, held, quoting from the headnotes. "1. A husband who is one of the subscribing witnesses to a will is not disqualified from giving testimony to establish its due execution before the probate court because of the fact that his wife is a legatee." "2. The provisions of § 4771, Gen. St. 1901, which render a, husband or wife incompetent to testify fOr or against edch other in an action, except in certain cases, do not disqualify a husband from testifying before a probate court in a proceeding to establish a will in which his wife is named as a legatee." We have reached the identical conclusion entertained by the Supreme Court of Kansas : that the probation of a will under the laws of this State is a special proceeding, and not a civil action, and that the inhibition contained in § 4146 has no application to such proceeding. It follows from this conclusion that a husband of a beneficiary in a will may be a competent subscribing witness thereto. The next question which arises for consideration is the competency of the husband of a beneficiary in a will to testify as a witness in a contest of its validity. It is axiomatic that the competency or incompetency of any witness in a civil action arises only when such witness is introduced as such. See 28 R. C. L., § 35, p. 448. At the . time F. J. Carroll was offered as a witness in the 'contest proceedings in the circuit court—and this is the point of time when his competency must be determined—his wife was not a party to the suit and had no interest in the subject-matter thereof because she had previously disclaimed the testamentary bequest, and her name had been stricken as a party to the proceedings. We conclude, therefore, that F. J. Carroll was a competent witness and that the trial court erred in holding otherWise. For the reasons stated, the cause must be reversed and remanded with directionS to proceed with the contest of the will in conformity to law, and not inconsistent with this opinion.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.