Campbell v. Porter

This was a petition by the executors of the will of the late Admiral David D. Porter, who died February 13, 1891, to the special term of the supreme court of the District of Columbia, sitting as an orphans' court, for the admission to probate of his will, and of a codicil thereto.

Upon citation to the next of kin, Elena Porter, a daughter of the testator (having become, by marriage, Elena Campbell) appeared, and demanded full proof of the execution of the will and codicil.

The will and the codicil each bore the signature of the testator, and those of the same three persons as witnesses. At the hearing in special term, it was shown by the examination of the witnesses that the will was duly executed by the testator, and attested by all three witnesses, and that the codicil was signed by the testator, and attested by two of the witnesses; and the only controverted question was whether the testator did or did not make or acknowledge his signature to the codicil in the presence of the third witness.

Upon the whole evidence (which was set forth in the record, but is unnecessary to the understanding of the points decided by this court), the judge holding the special term ordered the will to be admitted to probate as to both real and personal property, and the codicil to be admitted to probate in respect of personal property, and certified to the general term, for hearing in the first instance, the question of the sufficiency of the codicil to devise or dispose of real estate.

At the hearing in general term it was ordered and adjudged, for reasons stated in the opinion reported in 9 Mackey, 493, that the codicil was duly executed by the testator, and subscribed and attested by three witnesses, as required by law, and should be admitted to probate as a devise of real estate. A bill of exceptions to this ruling and order was tendered by Mrs. Campbell, and allowed by the court, which certified that the value of the real estate devised to her in the codicil was less than that devised to her in the will by more than the sum of $5,000,-a sufficient amount to sustain the appellate jurisdiction of this court, under the act of March 3, 1885, c. 355 (23 Stat. 443). And Mrs. Campbell on June 22, 1892, sued out this writ of error.

Walter D. Davidge, for plaintiff in error.

Chapin Brown, for defendants in error.

[Argument of Counsel from pages479-481 intentionally omitted]

Mr. Justice GRAY, after stating the case, delivered the opinion of the court.