Carlton v. Carlton
Supreme Court of New Hampshire
Appeal from a decree of the judge of probate allowing and approving the will of Samuel Carlton. The reason of appeal assigned was that one of the subscribing witnesses to the will was only of the age of eleven years and five months at the time of the execution thereof; and it was agreed that the age of the witness was correctly stated in the appeal.
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Appeal from a decree of the judge of probate allowing and approving the will of Samuel Carlton. The reason of appeal assigned was that one of the subscribing witnesses to the will was only of the age of eleven years and five months at the time of the execution thereof; and it was agreed that the age of the witness was correctly stated in the appeal. The word “ credible,” as used both in the English statute of frauds and in our own statute concerning wills, seems to imply something more than mere competency in the witnesses attesting a will devising real estate. Stock on Non Compotes Mentis,…
1Opinion of the CourtDoe, J.
The statute of wills requires “ three or more credible witnesses,” and the well settled construction of this and other similar statutes is, that the witnesses should be competent, or not disqualified, at the time of the attestation of the will, to be sworn and to testify in a court of justice. The argument that attesting witnesses are regarded in law as persons placed around the testator, to protect him from fraud, and to judge of his capacity, and are permitted to testify as to the opinions they formed of his capacity, and that it is contrary to the policy of the law to allow so important a…
2Cited by2 opinions
- Stewart v. HarrimanSupreme Court of New Hampshire · 1875
- Day v. DaySupreme Court of New Hampshire · 1876