The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1891-07-24
RIGHTS OF MARRIED WOMEN.
Can a Husband Witness a will in
which His wife is Legatee?

A novel and important point in law was
brought out in he airing in contested will
case in the Probate Court before Judge Pea
body yesterday. The circumstances are
briefly as follows: Miss Martha A. Files,
an aged lady, residing at White Rock, made
will last February, by which, after various
bequests, the residue of her property was
beoueathed to a nephew, G. Evans Files OF
Plymouth. Me. Subsequently q second will
was made. by which she bequeathed the res
idue to her brother, Merrill t. Files, Of
White Rock This was in last May, few
DAYS before the testator's death.
Both wills were presented for probate, and
the hearing took place yesterday. John Fl.
Fogg, Esq. appearing for the contestant and
Judge j. A. Waterman for the other party.
Mr.. Fogg objected to the admission of the
first will on the ground that there was a
later one. On the examination of the attest
ants, it appeared that Mr.. Harvey Murch of
White Rock, one Of the witnesses to the lat
or will. was the husband of Mrs. Lucinda P.
Murch, legatee under the same will
Judge Waterman objected to Mr.. Murch
as witness, on the ground that being the
husband of legated he was not legally COM
petent to testify The Maine statutes re-
quire that a witness to a will shall not be
benefclally interestee under it. Judge Wa
terman showed that under the common law
husband and wife could not be witnesses for
or against each other; that the common law
held unless altered by statute; that by sec
ton SO, chapter 50. of the Revised Statutes.
the husband or wife Of either party may be
witness in any suit In law or equity, but
that the following, section 95, expressly says,
Nothing In section SO affects the law relat-
ing. to the attestation of the execution OF
last Wills and testaments." Judge Water.
man claimed that the common law had not
the testimony Of husband and wife fol
or against each other in the attestation OF
last wills and testaments. and that therefore
the law applied to this case, and Mr.. Murch
was incompetent He cited authorities In
support of the point
Mr.. Fogg, on the other hand, maintained
that the decisions Of the Maine Supreme
Court, the final arbter of the law, had
leaned the other way; that the tendency
was to liberalize and broaden the interpreta-
tion of the laws relating to the execution OF
wills. BE referred to related cases that had
been decided In this spirit by the Supreme
Court. and said that In case of charitable OF
public requests it had been held that a
church member or member Of corpora
tioD, for instance, was not an incompetent
attestant on the ground Of being benefcially
interested; that 1t must not be an uncertain,
contingent interest, but direct, present.
certain, vested interest to disQualify the wit
ness He alluded particularly to the opin
ion drawn by Judge Virgin in the Coburn
will case. sustaining this point. He referred
also to case in which a mother had been
decided competent to attest will under
which a son benefited. A husband, he
claimed. could not be beneficially interested
In a case like this, because under the Maine
law the husband is not the legal heir of the
wife. and could take no part of legacy
made to her.
1t turns out that no decision has been
made directly involving the point at issue.
Judge Peabody took the case under consid-
Grafton and will announce his decision later.