66 not prevent the probate and allowance of such will, nor shall a mere charge on the land of the testator for the payment of his debts prevent a creditor from being a competent witness to his will. The test of competency is that defined by G. S. 1913, §§ 8369, 8375. In other words a person is competent to attest a will if at the time he would be competent to testify in a court as to the facts which he attests.67 If a witness is competent at the time he attests the will his subsequent incompetency from any cause will not defeat the probate of the will.68 Incompetency of a witness is not presumed and the question of competency is to be determined when the offer to examine the witnesses is made in the proceedings for the probate of the will, and then the facts are to be ascertained by the court."" A minor is a competent witness if he is old enough to testify in court.70 Devisees and legatees are competent witnesses though the gifts to them are avoided by the statute." A married person is not incompetent simply because the wife or husband of such person is a beneficiary under the will.72 A person who is named in the will as executor is competent." The wife of a person named in the will as executor is competent. The fact that the will makes the executor a residuary legatee does not disqualify him or his wife.75 Members of a religious order to which the testator belonged and to which he devised his property have been held competent witnesses.76 Brothers and sisters of a beneficiary under the will are competent." A judge of probate is not disqualified by his office from acting as a witness. But if he witnesses a will he is disqualified from acting in proceedings there 66 G. S. 1913, § 7251. 67 In re Holt's Will, 56 Minn. 33, 57 N. W. 219; Geraghty v. Kilroy, 103 Minn. 286, 114 N. W. 838; In re Sullivan's Will, 114 Mich. 189, 72 N. W. 135; In re Wiese's Estate, 98 Neb. 463, 153 N. W. 556: Carlton v. Carlton, 40 N. H. 17; In re Spier's Will, 99 Neb. 853, 157 N. W. 1014. See 35 L. R. A. (N. S.) 688; 77 Am. St. Rep. 459; Woerner, Am. Law of Adm. (2 ed.) § 41; 40 Cyc. 1110; 28 R. C. L. 132. 6s In re Holt's Will, 56 Minn. 33, 57 N. W. 219; Geraghty v. Kilroy, 103 Minn. 286, 114 N. W. 838; In re Sullivan's Will, 114 Mich. 189, 72 N. W. 135; In re Delavergne's Will, 259 Ill. 589, 102 N. E. 1081; Cochran v. Brown, 76 N. H. 9, 78 Atl. 1072; 30 A. & E. Ency. of Law (2 ed.) 604; 40 Cyc. 1110. 69 In re Holt's Will, 56 Minn. 33, 57 N. W. 219. 70 In re Spier's Will, 99 Neb. 853, 157 N. W. 1014 (girl fourteen years old held competent). See L. R. A. 1916E, 692; 30 74 71 A. & E. Ency. of Law (2 ed.) 604; 40 71 Benrud v. Anderson, 144 Minn. 111, 174 N. W. 617. See § 374. 72 In re Holt's Will, 56 Minn. 33, 57 N. W. 219; White v. Bower, 56 Colo. 575, 136 Pac. 1053; Lanning v. Gay, 70 Kan. 353, 78 Pac. 810; Lippincott v. Wikoff, 54 N. J. Eq. 107; 40 Cyc. 1112; Ann. Cas. 1917A, 833. 73 Geraghty v. Kilroy, 103 Minn. 286, 114 N. W. 838; Stewart v. Harriman, 56 N. H. 25. See 22 Harv. L. Rev. 616; 30 A. & E. Ency. of Law (2 ed.) 605; 40 Cyc. 1113. 74 In re Lyon's Will, 96 Wis. 337, 71 N. W. 362. 75 Cochran v. Brown, 76 N. H. 9, 78 Atl. 1072. 76 Will v. Sisters, Order of St. Benedict, 67 Minn. 335, 69 N. W. 1090. See 40 Cyc. 1114. 77 Burnham v. Grant, 24 Colo. App. 131, 134 Pac. 254. 78 79 on. A draftsman who draws a will may attest it." A trust estate created by a will is not invalidated by the fact that the trustee is one of the witnesses.80 Membership in a church which is a beneficiary under the will does not disqualify.81 A taxpayer of a municipality which is a beneficiary under a will is not disqualified.82 The fact that the will provides that a witness shall be employed by the executor as attorney does not disqualify him.83 A subsequent purchase by a witness of the interest of the beneficiary under the will does not disqualify him. A guarantor on a mortgage note given by a church has been held disqualified as a witness to a will giving a bequest to the church to be used for reducing the mortgage.85 One who signs the testator's name to the will at his request is competent.8 ALTERATIONS AND ERASURES 204. Presumptions-Where a will has remained in the possession of the testator from the date of its execution until his death, and is then found, the presumption is that erasures or interlineations were made by himself. It is generally held that where unattested alterations or interlineations appear on the face of a will there is a presumption of fact that they were made after its execution, at least if they change its effect, and the burden is on the proponent to prove that they were made before its execution. If they do not change its effect it is generally held that the burden of proving that they were made after the execution of the will rests on the contestant.88 78 G. S. 1913, § 7206 (see § 13, supra); McLean v. Barnard, 1 Root (Conn.) 462; Patten v. Tallman, 27 Me. 17; 30 A. & E. Ency. of Law (2 ed.) 606; 40 Cyc. 1115. 79 Schieffelin v. Schieffelin, 127 Ala. 14, 28 So. 687. See Coates v. Semper, 82 Minn. 460, 85 N. W. 217; Geraghty v. Kilroy, 103 Minn. 286, 114 N. W. 838; 40 Cyc. 1115. 80 In re Wiese's Estate, 98 Neb. 463, 153 N. W. 556. 81 Conrades v. Heller, 119 Md. 448, 87 Atl. 28. 82 In re Potter's Will, 89 Vt. 361, 95 Atl. 646; 40 Cyc. 1114. 83 In re Rehard's Estate, 163 Iowa 310, 143 N. W. 1106. $4 In re Delavergne's Will, 259 Ill. 589, 102 N. E. 1081. 85 Crowell v. Tuttle, 218 Mass. 445, 105 N. E. 980. 86 Bocquin v. Theures, 133 Ark. 448, 202 S. W. 845. 87 Thomas v. Thomas, 76 Minn. 237, 246, 79 N. W. 104. See § 221. 88 Wilton v. Humphreys, 176 Mass. 253, 57 N. E. 375; O'Connell v. Dow, 182 Mass. 541, 66 N. E. 788; Smith v. Runkle (N. J.) 97 Atl. 296; In re Atkinson's Estate (N. J.) 115 Atl. 370; City Nat. Bank v. Slocum, 272 Fed. 11; Jersey v. Jersey, 146 Mich. 660, 110 N. W. 54; In re Ross' Will, 160 N. Y. S. 518; 2 A. & E. Ency. of Law (2 ed.) 280; 40 Cyc. 1275; Woerner, Am. Law of Adm. (2 ed.) $ 49; 17 L. R. A. (N. S.) 184; Ann. Cas. 1915C, 74; 14 Col. L. Rev. 264; 25 Harv. L. Rev. 699. See Wilson v. Hayes, 40 Minn. 531, 42 N. W. 467. 205. Attestation-Certain erasures and interlineations made in an executed will by the testator have been held ineffectual as alterations or partial revocation for an insufficient attestation by witnesses.89 206. Fraudulent-Erasures and alterations made by a third party, without the procurement of the proponent, do not avoid a will, either in whole or in part. If made by the proponent, or by his procurement, they avoid the provisions of the will in his favor.9° 90 207. Effect of invalid alteration after execution-Where interlineations and additions made by a testator after the execution of the will cannot be upheld, erasures must fall also, though they might operate as a pro tanto revocation if they stood alone. In such a case the will as originally written and executed is entitled to probate. Parol evidence is admissible to prove the erased words if they are illegible.o1 CODICILS 208. Definition-A codicil is a supplement to a will, executed by the testator with the same formalities as a will, designed to be considered as a part of the will, and to alter it by addition or subtraction or otherwise, or to explain, revive, confirm or revoke some or all of its provisions.92 209. Will includes codicil-When used in statutes the word "will" is to be construed as including codicils.93 210. Will and codicil construed together-A will and codicil are to be construed together and all their provisions harmonized so far as possible. Unless there is an irreconcilable conflict between them the codicil is no more the last expression of the testator's intention than if it had been a part of the will. Though a codicil contains invalid provisions it is to be read in connection with the will to ascertain the intention of the testator.95 211. Presumption that testator knew contents of will-In construing a codicil and will it will be presumed that the testator, when executing 89 In re Penniman's Will, 20 Minn. 245 (220). See 51 L. R. A. (N. S.) 169; Ann. Cas. 1915C, 74. 90 Thomas v. Thomas, 76 Minn. 237, 243, 79 N. W. 104. 91 In re Penniman's Will, 20 Minn. 245 (220); Thomas v. Thomas, 76 Minn. 237, 79 N. W. 104; In re Knapen's Will, 75 Vt. 146, 53 Atl. 1003; 2 A. & E. Ency. of Law (2 ed.) 266; 40 Cyc. 1097. 92 Century Dict.; 6 A. & E. Ency. of Law (2 ed.) 175; 28 R. C. L. 197. 93 G. S. 1913, § 9412 (23). 94 Atwater v. Russell, 49 Minn. 22 51 N. W. 624; Carpenter's Estate v. Wiley, 166 Iowa 48, 147 N. W. 175; Goodwin v. Coddington, 154 N. Y. 283, 48 N. E. 729; Bloodgood v. Lewis, 209 N. Y. 95, 102 N. E. 610; Lovering v. Balch, 210 Mass. 105, 96 N. E. 142; Joiner v. Joiner, 78 Miss. 369, 78 So. 369; 6 A. & E. Ency. of Law (2 ed.) 179; 40 Cyc. 1421; 28 R. C. L. 199; Woerner, Am. Law of Adm. (2 ed.) § 415. See § 224. 95 In re Megrue, 120 N. Y. 651, 120 N. E. 651. the codicil, knew the contents of the will and the effect of the codicil thereon.96 212. Change or substitution of beneficiaries-A certain will and codicil construed and held that it was the intention of the testator, by the codicil, to substitute to the residuary bequest in the will, in lieu of the legatee mentioned in it, a new beneficiary brought in by the codicil, though the codicil made no express reference to the residuary clause in the will.97 213. Adding another trustee or grantee of a power-A testator may add another trustee or grantee of a power by a codicil, but the addition by a codicil of another as co-executor, without referring in any manner to the trust and power vested by the will in the person first named as executor, does not show an intention to add another trustee or grantee of the power.99 98 214. Substitutional legacies-Where a codicil gives a legacy as a substitute for a legacy given by the will, the new legacy will have all the incidents, conditions and limitations attaching to the original legacy unless a contrary intention is manifested by the will and codicil construed together in the light of the circumstances.99 215. Republication of will by codicil-It is the general rule that a codicil republishes the will and causes it to take effect as of the date of the execution of the codicil. The two instruments are treated as one, speaking from the date of the codicil. No precise words or express intention are necessary to effect a republication. This doctrine, however, will not be allowed to defeat the manifest intention of the testator disclosed by the will and the circumstances. This rule originated at a time when property acquired by a testator after the execution of a will and before his death did not pass by the will. Since the enactment of statutes abolishing this rule its application is more restricted. If it is clear that the testator intended provisions of his will to refer to the date of its execution its subsequent republication by a codicil will not make them refer to the date of the codicil. If a former will or codicil is 96 Atwater v. Russell, 49 Minn. 22, 53, 51 N. W. €24. 97 Atwater v. Russell, 49 Minn. 22, 51 N. W. 624. See A. & E. Ency. of Law (2 ed.) 731. 98 Simpson v. Cook, 24 Minn. 180, 187. 99 Carpenter's Estate v. Wiley, 166 Iowa 48, 147 N. W. 175; 6 A. & E. Ency. of Law (2 ed.) 181; 18 Id. 730; 40 Cyc. 1525. 1 In re Campbell, 170 N. Y. 84, 62 N. E. 1070; In re Brann, 219 N. Y. 263, 114 N. E. 404; Wait v. Belding, 24 Pick. (Mass.) 129; Alsop's Appeal, 9 Pa. 374; In re Matthews' Estate, 176 Cal. 576, 582, 169 2 See In re Matthews' Estate, 176 Cal. 576, 169 Pac. 233, 235. 3 In re Edward's Estate, 254 Pa. St. clearly inconsistent with a later codicil the latter does not revive and republish the former. The doctrine of republication applies though the codicil does not dispose of property but merely appoints an executor.5 Where a codicil republishes a will which had codicils added to it, the presumption is that the testator meant to ratify the will as amended by such codicils, and the codicils are republished." If a will is altered after execution and then republished and confirmed by a codicil it is thereby validated. A codicil duly executed will republish a prior will and make it operative though the will was not duly executed. If a testator executes a will under undue influence, and later, while not under such influence, executes a codicil thereto, the latter republishes and validates the will. If a testator executes a will while lacking testamentary capacity, and later with full testamentary capacity executes a codicil thereto, the latter republishes and validates the will.10 The republication of a will by a codicil does not revive legacies which have been revoked, adeemed or satisfied in the interval between the will and the codicil. It does not revive legacies or devises that have lapsed by the death of the devisee or legatee in the lifetime of the testator." A charitable gift is not republished by a codicil if it would thereby be rendered illegal. 13 A codicil has been held such a republication of a will as to make a reference in the will to a deed apply to a new deed to the same land made after the will and before the codicil.14 11 REVOCATION 216. Statute-No will in writing, except in the cases hereinafter mentioned, shall be revoked or altered otherwise than by some other will in writing, or by some other writing of the testator, declaring such revocation or alteration, and executed with the same formalities with which 159, 98 Atl. 879. See 6 A. & E. Ency. of Law (2 ed.) 199; 40 Cyc. 1221. 4 Freeman v. Hart, 61 Colo. 455, 158 Pac. 305. 5 Manship v. Stewart, 181 Ind. 299, 104 N. E. 505; In re Kerr's Estate, 255 Pa. 399, 100 Atl. 127. Manship v. Stewart, 181 Ind. 299, 104 N. E. 505; Skinner v. Am. Bible Soc., 92 Wis. 209, 65 N. W. 1037. 7 Smith v. Runkle, 86 N. J. Eq. 257, 97 Atl. 296. See 40 Cyc. 1219. 8 In re Murfield, 74 Iowa 479, 38 N. W. 170; Smith v. Runkle, 86 N. J. Eq. 257, 97 Atl. 296; 40 Cyc. 1217. In re Kerr's Estate, 255 Pa. 399, 100 Atl. 127; Stevens v. Myers, 62 Or. 372, 121 Pac. 434, 126 Pac. 29; Taft v. Stearns (Mass.) 125 N. E. 570. See In re Baird's Estate, 176 Cal. 381, 168 Pac. 561; 40 Cyc. 1217. 10 Barnes v. Phillips, 184 Ind. 415, 111 N. E. 419; Smith v. Runkle, 86 N. J. Eq. 257, 97 Atl. 296; Stevens v. Myers, 62 Or. 372, 121 Pac. 434, 126 Pac. 29; Taft v. Stearns (Mass.) 125 N. E. 570; 40 Cyc. 1217. 11 Paine v. Parsons, 14 Pick. (Mass.) 318; 6 A. & E. Ency. of Law (2 ed.) 199; 40 Cyc. 1221; 95 Am. St. Rep. 370. 12 Gibbons v. Ward, 115 Ark. 184, 171 S. W. 90; Dunn v. Kearney, 288 Ill. 49. 123 N. E. 105. See 40 Cyc. 1216. 13 In re McCauley's Estate, 138 Cal. 432, 71 Pac. 512; Appeal of Carl, 106 Pa. 635. 14 Lawrence v. Burnett, 109 S. C. 416, 96 S. E. 144. |