Atkins v. Sanger

Decided October 15, 1822

Massachusetts Supreme Judicial Court · decided 1822-10-15

This was an appeal from a decree of the judge of probate, by which a certain instrument, made in 1821, was allowed as the last will and testament of Sarah Badger. In this instrument, the principal legacies were given to Sanger, Noyes anu Thayer, the appellees, and they were also named as executors Atkins, the appellant, was the executor and a legatee in a former will, made in 1819.

Decided 1822-10-15

The Chief Justice,

¶1after a short consultation with his brethren, said the Court were inclined to admit evidence of the declarations of either of the executors as to facts which took *199place at the time of making the will. This decision does not interfere with the case cited of Phelps v. Hartwell.1

¶2 On the issue of dcvisavit vet non, the declarations of one of the devisees, who is not a party to the record, are not evidence to invalidate a will. Lightnet v. Wike, 4 Serg. & R. 203; Bovard v. Wallace, 4 Serg. &. R. 499; Nussear v. Arnold, 13 Serg. & R. 323. But the declarations of a sole devisee would be evidence.