Belledin v. Gooley.

A demurrer for want of facts was sustained to each paragraph, and this ruling of the court is assigned for error.

In this State it is provided by statute that "No will except a noncupative will shall affect any estate, unless it be in writing, signed by the testator, or by some one in his presence with his consent, and attested and subscribed in his presence by two or more competent witnesses; and if the witnesses are competent at the time of attesting, their subsequent incompetency shall not prevent the probate thereof." $2746 Burns 1894, §2576 R. S. 1881 and Horner 1897. An attesting witness is competent, under said section, if, at the time of such attestation, he is competent to testify in court to the facts which he attests. In re Holt, 56 Minn. 33, 45 Am. St. 434, 22 L. R. A. 481, 483; Jenkins v. Dawes, 115 Mass. 599; Morrill v. Morrill, 53 Vt. 74, 78, 38 Am. Rep. 659. The question to be determined, therefore, is whether or not appellee's wife was a competent witness when she attested said will. A large number of the authorities upon the subject of subscribing witnesses and their competency are collected in the note to Stevens v. Leonard, (154 Ind. 67), 77 Am. St. 446, 459, 469. In this State, however, the question of the competency of such witness is to be determined by statute. Section 504 Burns 1894, §496 R. S. 1881 and Horner 1897 makes all persons, whether parties to or interested in the suit, competent witnesses in a civil action or proceeding, except as otherwise provided in said act. One of the exceptions is that "In all suits by or against heirs or devisees, founded on a contract with or a demand against the ancestor, to obtain title to or possession of property, real or personal, of, or in right of, such ancestor, or to affect the same in any manner, neither party to such suit shall be a competent witness as to any matter which occurred prior to the death of the ancestor." $507 Burns 1894, $499 R. S. 1881 and Horner 1897. This section has been held to apply to actions to contest wills. Lamb v. Lamb, 105 Ind. 456, 458, 459; Staser v. Hogan, 120 Ind. 207, 214; Burkhart

Belledin v. Gooley.

v. Gladish, 123 Ind. 337, 345, 346; McDonald v. McDonald, 142 Ind. 55, 87, 88.

These cases also hold that parties to an action to contest. a will are not excluded from testifying respecting matters open to the observation of all the friends and acquaintances of the deceased, such as the mental capacity of the testator. But that they are incompetent to testify concerning matters connected with the execution of the will, and all other matters not open to such observation. McDonald v. McDonald, supra, 87; Burkhart v. Gladish, supra, 346; Lamb v. Lamb, supra, 459.

It is evident from said authorities that a devisee under a will is not a competent witness concerning matters connected with its execution. Section 509 Burns 1894, §501 R. S. 1881 and Horner 1897, provides: "When the husband or wife is a party, and not a competent witness in his or her own behalf, the other shall also be excluded; except that the husband shall be a competent witness in a suit for the seduction of the wife, but she shall not be competent."

Under said section and the authorities cited it is clear that when the husband or wife of a devisee is a witness to such will, that such husband or wife is not a competent witness to prove the due execution of said will. This is true, because in such case, under $507 (499), supra, the devisee is not a competent witness concerning matters connected with the execution of the will, and the husband or wife of such devisee, although a witness to the will, is, under §509 (501), supra, incompetent at least to the same extent the devisee is. It is true, under §510 Burns 1894, §502 Horner 1897, that in all cases referred to in $8507, 509 (499, 501), supra, any party to such suit has a right to call and examine any party adverse to him as a witness, or the court may, in its discretion, require any party to a suit, or other person, to testify, and that any abuse of such discretion is reversible on appeal.

An incompetent witness who is called and examined by the

State v. Flynn.

adverse party, or required by the court to testify under said section, only becomes competent when so called and examined or required to testify, and not before.

If a witness to a will, whose husband or wife is devisee thereunder, is called and examined or required to testify, under said section, such witness becomes competent at that time. It is not sufficient under our statute that the witness to a will may be competent when the will is proved; he must be competent at the time of attestation. $2746 (2576), supra.

It is held in Iowa, Minnesota, and Texas, that the husband or wife of a devisee is a competent witness to such will. Hawkins v. Hawkins, 54 Iowa 443; Bates v. Officer, 70 Iowa 343; In re Holt, 56 Minn. 33, 45 Am. St. 434, 22 L. R. A. 481; Gamble v. Butchee, 87 Tex. 643, 647.

In said states, however, the husband and wife are competent witnesses for each other in all proceedings to probate wills, while in this State they are not competent witnesses for each other in such cases. It follows that the court erred in sustaining the demurrer to each paragraph of the complaint.

Judgment reversed, with instructions to overrule said demurrer, and for further proceedings not inconsistent with this opinion.

THE STATE v. FLYNN ET AL.

[No. 19,505. Filed May 28, 1901.]

OFFICERS.-Penalty.-Liability on Official Bond.-The penalty imposed on an officer by §132 of the act of March 11, 1895, for failure to report or pay over fees collected is in the nature of a punishment of the officer, and cannot be recovered by the State in an action on an official bond conditioned that such officer shall faithfully discharge his duties and pay over all moneys coming into his hands as such officer.

From Tippecanoe Circuit Court; W. C. L. Taylor, Judge. Action by State against David H. Flynn and others. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

State v. Flynn.

E. A. Randolph and C. E. Thompson, for State.

A. L. Kumler, T. F. Gaylord, G. P. Haywood and C. A. Burnett, for appellees.

DOWLING, C. J.-This was an action upon the official bond of the appellee David H. Flynn, clerk of Tippecanoe county, to recover from him and his sureties the penalty imposed by $132 of the act of 1895 (Acts 1895, p. 357), for the failure of the officer to make the reports required by law, and to pay the amount due from him into the county treasury. The complaint was in two paragraphs, to each of which the appellees, separately, demurred for want of facts. The demurrers were sustained. The appellant elected to stand by its complaint, and there was judgment for the appellees. The errors assigned are upon the rulings on the demurrers.

The complaint, after alleging the election and qualification of the clerk, and the due execution of his official bond, charged, as a breach thereof, that the officer received and collected, by virtue of his office, fees to the amount of $17,648.31, which he failed to report and pay over, but wrongfully converted to his own use. Judgment for an equal amount, as the penalty given by the statute, was demanded.

The general provision of the statute concerning official bonds is as follows: "All official bonds shall be payable to the State of Indiana; and every such bond shall be obligatory to such State upon the principal and sureties, for the faithful discharge of all duties required of such officer by any law, then or subsequently in force, for the use of any person injured by any breach of the condition thereof." $7543 Burns 1894, $5528 R. S. 1881.

The statute required that the clerk should give bond in such sum as should be determined by the board of commissioners, with surety, to be approved by the board, conditioned for the faithful discharge of the duties of his office, and the payment to the proper person, or persons, of all moneys that should come into his hands as such clerk.

State v. Flynn.

The bond so executed by the appellee and his sureties contained this stipulation: "The condition of the above obligation is such that if the above bounded David H. Flynn shall faithfully discharge the duties of the office of circuit court clerk of said county and State, and shall pay over on demand to the person or persons entitled or authorized to receive the same all moneys that may come into his hands as such circuit court clerk, by virtue of his office, then this obligation is to be void," etc.

The section of the statute under which the penalty sued for in this action is claimed is in these words: Acts 1895, pp. 304, 357, §$132. "Any officer failing or refusing to make the reports required by law, or to pay the amount due from him into the county treasury, shall forfeit and pay to the State the sum equal to the amount of the fees actually collected during that quarter to be recovered by the prosecuting attorney in any court of competent jurisdiction, onehalf to be paid to such prosecuting attorney, and the balance into the common school fund."

It is not alleged in the complaint that any part of the moneys which Flynn collected and failed to report and pay over belonged to the State, or that the State sustained any injury by such failure. The statute itself declares that the fees and costs collected by the clerk "shall in no sense belong to, or be the property of the clerk, but shall belong to and bet the property of the county." Acts 1895, p. 334, §114, $6519 Burns Supp. 1897. This action is not prosecuted for the benefit of the county, but solely for the purpose of enforcing the penalty given to the State and prosecuting attorney by the statute, and compelling its payment by Flynn and his sureties, as an obligation upon his official bond.

Can the penalty so given be enforced in an action on the bond of the clerk? It is entirely clear that it cannot. The bond is intended to protect and indemnify all persons, natural and artificial, who may sustain injury by reason of a breach of its conditions by the officer. The penalty given