aid will was null and void for the reason that tested by two credible witnesses. Upon a hearunty court it appeared from the evidence that ce E. Fearn, one of the attesting witnesses, was of the execution of the will the wife of Wil1, who was named as executor therein, and thereourt held that she was an incompetent witness and admit the will to probate. The executor appealed order to the circuit court, and upon a trial there held that the said Alice E. Fearn was a credible witness, that said will was properly executed acO law and decreed that it be admitted to probate. stlethwaite brings the case to this court by appeal.

: & COOPER, for appellant:

e an adverse party sues or defends in a fiduciary the husband and wife cannot testify for or against r. Treleaven v. Dixon, 119 Ill. 548; Way v. Har126 id. 132; Bevelot v. Lestrade, 153 id. 625; ShoIl'arrick, 152 id. 355.

wife of a legatee under a will is not a competent witness to such will, and probate of a will should l where one of the two attesting witnesses required atute was incompetent to act as a witness. Sloan 184 Ill. 579.

competency of attesting witnesses must be deterom the facts existing when the will is executed. Spence, 150 Ill. 253; Slingloff v. Bruner, 174 id. ust Co. v. Brown, 183 id. 47.

rule of law prohibiting a husband and wife testifyor or against each other is based largely on pubdependent of interest. Sloan v. Sloan, 184 Ill. son v. Cross, 58 id. 366; Reeves v. Herr,

law the husband was not a competent atto a will. Giddings v. Turgeon, 58 Vt. 106.

WILLIAM FEARN, Appellee, vs. MARIA POSTLETHWAITE,

Appellant.

Opinion filed June 16, 1909.

I. WILLS-competency of attesting witnesses is to be tested as of the time of attestation. "Credible" attesting witnesses, as that word is used in the statute, means "competent" witnesses, and their competency is to be tested as of the time of attestation and not as of the time of the probate of the will.

2. SAME-executor named in will is not a competent attesting witness. The executor named in a will is in the same class as a legatee or devisee and is not a competent witness to the will, although he may be compelled, if his testimony is needed, to abandon his executorship and testify to the execution of the will. (Jones v. Grieser, 238 Ill. 183, adhered to.)

3. SAME-wife of executor named in will is not a competent attesting witness. An attesting witness who at the time of such attestation is the wife of the executor named in the will is not a competent attesting witness, and unless there are two other competent witnesses the will is not entitled to probate, since the incompetency of the wife of the executor, like that of the wife or husband of a legatee or devisee, is not removed by section 8 of the Wills act.

APPEAL from the Circuit Court of Montgomery county; the Hon. A. M. ROSE, Judge, presiding.

On the 5th day of February, 1908, Elizabeth Wallwork, of Montgomery county, Illinois, executed her last will and testament. William Fearn was appointed sole executor without bond, and E. B. Appleton and Alice E. Fearn subscribed said will as attesting witnesses. On July 19, 1908, Elizabeth Wallwork, the testatrix, died, and afterwards, at the July term, 1908, of the county court of Montgomery county, the said William Fearn presented his petition praying that the said last will and testament of said Elizabeth Wallwork be admitted to probate. Maria Postlethwaite, a daughter of testatrix and a devisee under the will, thereupon filed a petition in said court, alleging, among other

things, that said will was null and void for the reason that it was not attested by two credible witnesses. Upon a hearing in the county court it appeared from the evidence that the said Alice E. Fearn, one of the attesting witnesses, was at the time of the execution of the will the wife of William Fearn, who was named as executor therein, and thereupon the court held that she was an incompetent witness and refused to admit the will to probate. The executor appealed from that order to the circuit court, and upon a trial there that court held that the said Alice E. Fearn was a credible attesting witness, that said will was properly executed according to law and decreed that it be admitted to probate. Maria Postlethwaite brings the case to this court by appeal.

LANE & COOPER, for appellant:

Where an adverse party sues or defends in a fiduciary capacity the husband and wife cannot testify for or against each other. Treleaven v. Dixon, 119 Ill. 548; Way v. Harriman, 126 id. 132; Bevelot v. Lestrade, 153 id. 625; Shovers v. Warrick, 152 id. 355

The wife of a legatee under a will is not a competent attesting witness to such will, and probate of a will should be denied where one of the two attesting witnesses required by the statute was incompetent to act as a witness. Sloan v. Sloan, 184 Ill. 579.

The competency of attesting witnesses must be determined from the facts existing when the will is executed. Fisher v. Spence, 150 Ill. 253; Slingloff v. Bruner, 174 id. 161; Trust Co. v. Brown, 183 id. 47.

The rule of law prohibiting a husband and wife testifying either for or against each other is based largely on public policy, independent of interest. Sloan v. Sloan, 184 Ill. 583; Mitchinson v. Cross, 58 id. 366; Reeves v. Herr, 59 id. 81.

At common law the husband was not a competent attesting witness to a will. Giddings v. Turgeon, 58 Vt. 106.

GEORGE P. O'BRIEN, and JETT & KINDER, for appellee: The word "credible," as applied to the subscribing witnesses to a will, means competent. Gump v. Gowans, 226 Ill. 635; Harp v. Parr, 168 id. 459.

The competency of a witness to a will is to be tested by his status at the time of the attestation and not at the time when the will is presented for probate. Gump v. Gowans, 226 Ill. 635; Fisher v. Spence, 150 id. 253.

The wife of a person named as executor is a competent witness to the will if he is not a legatee or devisee therein. Piper v. Moulton, 72 Me. 155; In re Will of Lyon, 96 Wis. 339; Stewart v. Harriman, 56 N. H. 25.

The test whether the wife of the executor is a credible witness depends upon whether the husband is disqualified to be a subscribing witness by the fact that he is named as executor. Stewart v. Harriman, 56 N. H. 25.

A person named as executor who receives no legacy or devise is a competent or credible subscribing witness, and is not made incompetent by the fact that he is to receive commissions. Richardson v. Richardson, 35 Vt. 238; Wyman v. Symmes, 10 Allen, 153; In re Will of Lyon, 96 Wis. 339; Sears v. Dillingham, 12 Mass. 357; Baker v. Bancroft, 79 Ga. 672; Jones v. Larabee, 47 Me. 479; Piper v. Moulton, 72 id. 155; Murphy v. Murphy, 24 Mo. 526; Orndorff v. Hummer, 12 B. Mon. 619; In re Gagan's Will, 21 N. Y. Supp. 350; In re Jordan's Estate, 161 Pa. 393; Meyer v. Fogg, 7 Fla. 292; Stewart v. Harriman, 56 N. H. 25; Phipps v. Pitcher, 6 Taunt. 220; Goodtitle v. Welford, 1 Doug. 139; Lowe v. Jollife,. 1 Wm. Bl. 365; Patten v. Tallman, 27 Me. 17; Warren v. Baxter, 48 id. 193; Comstock v. Hadlyme, 8 Conn. 254; McDonough v. Laughlin, 20 Barb. 238; Denn v. Allen, 1 Penning, 35; Coalter v. Bryan, I Gratt. 18; Peralta v. Castro, 6 Cal. 354; Children's Aid Society v. Loveridge, 70 N. Y. 387.

An executor who has no interest in surplus is a good witness to prove will. Bettison v. Bromley, 12 East, 250.

Decisions in this State as to the competency of witnesses in a proceeding in chancery to contest a will already admitted to probate have no application in a proceeding to admit the will to probate. Jones v. Abbott, 235 Ill. 220; Rev. Stat. chap. 51, sec. 8.

Mr. CHIEF JUSTICE FARMER delivered the opinion of the

court:

The sole question to be determined is whether the wife of a man named as executor of a will is a competent witness to attest the will.

Section 2 of chapter 148 of our statutes requires that all wills, testaments and codicils shall be attested in the presence of the testator or testatrix "by two or more credible witnesses." The word "credible," as here used, means competent, (Gump v. Gowans, 226 Ill. 635; Harp v. Parr, 168 id. 459;) and the credibility or competency of an attesting witness is to be tested at the time of the execution of the will, and not when it is presented for probate. (Gump v. Gowans, supra; Fisher v. Spence, 150 Ill. 253.) "The attesting witnesses are regarded in the law as persons placed round the testator in order that no fraud may be practiced upon him in the execution of the will and to judge of his capacity. They must therefore be competent witnesses at the time of attestation, otherwise the will is not well executed." (2 Greenleaf on Evidence, sec. 691.)

In an able brief counsel for appellee have cited a number of cases from other jurisdictions which hold that an executor of a will is also a competent subscribing witness thereto, but this court, in the recent case of Jones v. Grieser, 238 Ill. 183, while recognizing the conflict of authorities outside of Illinois on the question, decided that under our statute an "executor has such a direct financial interest in the probate of the will that he is disqualified, by reason of such interest, as a witness to the execution of the will." The interest which an executor takes under a will that disqualifies