Blythe v. Ayres

4 Coffey 445

• Court: Superior Court of California, County of San Francisco
• Decided: August 21, 1889
• Docket: No. 2401
• Status: Published

Opinion

COFFEY, J.

Mr. Boalt stated when he began his argument, “I have four answers to the argument of the adverse counsel, any one of which is sufficient to overthrow their objection. First: We called the witness Mr. Hart because he is a subscribing witness. ’ ’ That is all there is about it. Mr. Hart was called as a subscribing witness. What is a subscribing witness? Mr. Bergin has called the attention of the court to section 1935, Code of Civil Procedure. “A subscribing witness is one who sees a writing executed or hears it acknowledged, and at the request of the party thereupon signs his name as a witness.” How may a writing be proved? Section* 1940, Code of Civil Procedure, says: “Any writing may be proved, first, by anyone who saw the writing executed, or second, by evidence of the genuineness of the handwriting, or third, by a subscribing witness. ’ ’ Section 1941, Code of Civil Procedure, says: “If the subscribing witness denied or does not recollect the execution of the writing, its execution may still be proved by other evidence.” A person called as a subscribing witness is limited in his testimony as such as to all matters that are connected with the execution of the instrument, and it has been stated repeatedly that it is unnecessary, as it is unusual, for a testator to disclose the contents of the instrument to the subscribing witness, and, therefore, the subscribing witness has nothing to do with the contents of the instrument, but such matters as are pertinent to his attestation may be inquired into and should be disclosed by the witness, and, hence, it follows that the second part of the first observation of Judge Boalt is sound law: “That where an attorney is a subscribing witness he is therefore qualified to testify the same as any other subscribing witness.” This is a rule that is well established. Now, I wish to state this so as to show the limitations of the decision, and that will be helped out by recurring to the suggestions which were offered by Mr. Highton. This question presents two phases: 1. The existence of the paper; 2. The disclosure of the circumstances connected with the existence and execution of the paper. Existence and loss should be first proved. That is correct. It is perfectly competent to inquire of the witness as to the fact that he was called in by Mr. Blythe to sign as a subscribing witness, and it is also competent to inquire of him of everything incident to the execution of that document which would include the delivery and the retrieval, so to call it. Mr. Highton’s statement may be correct, but it is not necessary now to decide it—that with reference to the disclosures concerning the contents of the paper he thought they were obnoxious to censure, or words to that effect. Before any inquiry can be made of anybody as to the contents of that instrument its existence and insusceptibility of production must be established. The witness may take the stand again and the reporter will refer to his notes. The motion to strike out is denied, under the limitations stated by the court, and objection to the question is in the same manner overruled for the same reasons.

The Attestation and Witnessing of Wills are discussed in the note to Estate of Shillaber, 1 Cof. Pro. Dec. 124.