St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1893-12-30
RULE OF COMPETENCY.
Attestant of VIII Must Be Com =
potent at the Time.


potent at the Time.
The supreme court handed down de-
ciSions in the following cases yesterday,
which were affirmed and all written by
Judge Vanderburgh:
In re last will of Julia c. Holt Georgiana
Needham ct al, proponents respondents,
VS.. Lizzie Rorden et al, contestants, ap-
pellants.' Order affirmed.
VANDERBUEGu. j.
misunderstanding witnaSSe to a
will must be such as are competent at
the date of the attestatiOn. And ii then
competent their subsequent lncompe.
tency, from whatever cause, Will not
prevent the probate of the will.
The rule Of competency in such cases
in this state is that defined by the stat
ute. Gen. st. eS7S. CHI. 70, secs. 6. Z.
A married person is not 10 be deemed
an incompetent at.eSting witness at the
time of the execution of will simply
because the husband or wife of such
person is beneficiary under the will.
And the question of incompetency in
such cases can only arise subsequently
on the probate of the will upon his or
her examination witness, and then
only in the single contingency that such
beneficiary becomes contestant, and
does not then consent to the examina-
ton of the witness.
The statute makes void legacy to an
atteSting witness. But this provision
does not under the laws of this state
apply to the husband or wife Of such
witness. Neither has any present
direct or certain interest in legacy to
the other.
Manford Horn. respondent, VS.. Theodore
Hansen, appellant. Order affirmed.
VANDERBURGH, j.
Syllabus-A nnilatoral promise or
agreement in writing to pay for speci-
fed personal property is binding If
upon sufficient consideration and in a
case not within the statute of frauds
the consideration may be shown by
parol. But the writing may not be con-
tradicted by oral evidence, though an
issue may be raised in respect to the
consideration, or the writing may for
other valid reason be shown to be in
operative.
Where either of the parties TO a suit
is stranger to the written agreement
in controversy, and does not claim un-
der one who is party to it, the rule
forbidding parol evidence to vary or
contradict its terms does not apply.
Otherwise when the question arises be-
tween those claiming under the original
parties to it.
A note or other instrument containing
an express promise to pay money, with
out any time specified, is in law paya-
ble Immediately, and interest runs from
its date, while promise to pay upon
demand requires at least judicial de-
mand to set interest running.
lob 10
Fire insurance Company, appellant. Order
Affirmed. VANDERBURGH, j.
SyllabuS-A simple contract of rein
Surance between insurance companies
is contract of indemnity in which the
insurer reinSureS risks in another com.
pany. and is solely for the benefit of tine
latter, and not for the policy holders.
But where such contract also includes
promise or understanding to assume
and pay the losses of policy holders
action in case of loss may be brought
by them directcy against the reins urer
upon such promise or undertaking.
In such case the policy holder may
sue either company. But the remedies
are not inconsistent, and he is not put
to an election. He may have an action
against each, though he can have but
one satisfaction So if he file his claim
III iHoOlfCuSy plOCCCulHSS oSoiHSG OiCs
it is no bar to his action against the
other.
Neither is the doctrine of novation
applicable to such case.
The nature of the agreement between
two parties, where one agrees, upon a
consideration moving from the other to
pay debt due from the latter to a
third person, considered and held not
to constitute a novation on the mere
consent to or adoption of such agree
ment by such third party creditor.