In re certain paper writing purporting to be the last will & testament of Spiegelhalter

39 A. 465, 17 Del. 5, 1 Penne. 5, 1897 Del. LEXIS 19

Opinion

EorE, C. J:—

The probate of a will is a civil proceeding as contradistinguished from criminal proceedings. The executor, therefore, would be a competent attesting witness under the express terms of the statute (Section 1, Chapter 337, Rev. C. 798), unless shut out by the proviso.

Can it be. said, in any proper sense, that the probate of a will is an action or proceeding by or against an executor and in which judgment or degree may be rendered for or against him as such executor ? There are no parties to the action. In contemplation of law it is solely an inquiry as to the validity of a certain paper writing, whether it is or is not the last will and testament of the decedent; and the judgment or decree in such case is either that it is or is not such will. The costs are uniformly taxed upon the estate inquired about, and an executor is in no wise liable to have judgment or decree rendered for or against him, as .such, for costs, charges or otherwise.

We think, therefore, the statute makes an executor a competent attesting witness tó a will.