Opinion
(August Term, 1861.)
Under the act of Assembly, Revised Code, ch. 119, sec. 9, one named as executor in a script, propounded as a will, though named as plaintiff in an issue devisavit vel non, may be examined as a witness for the caveator as well as for the propounder.
DEVISAVIT VEL NON, tried before Osborne, J., at Fall Term, 1860, of RUTHERFORD.
Gaither for propounder.
Logan for caveators.
One of the questions presented on the trial was whether the person named in the script as executor and who propounded the will for probate, and as such was stated on the record to be the plaintiff, could be a witness for the caveators, who are stated as defendants. His Honor rejected the witness, and the caveators excepted.
There was evidence adduced on the trial to the effect that certain provisions dictated by the decedent to the draftsman in behalf of some of the caveators had been omitted from the script by mistake, and it was contended on this account that the will was not that of the decedent, on which point his Honor instructed the jury that, though they might believe that particular provision had been omitted by the draftsman by mistake, yet if the testator had published the will as it (409) was, and had the capacity required by law as had been explained to them, they should find for the plaintiff.
The caveators again excepted.
In the instructions given to the jury upon the question set out in the bill of exceptions we entirely concur, and we do not deem it necessary to add anything to the remarks made by his Honor on those questions.
But upon the point of the rejection of the executor as a witness for the defendants we think his Honor fell into an error. The script propounded for probate bears date 16 August, 1858, which is since the Revised Code went into operation, and by section 9 of chapter 119 of that Code a person named as an executor is made competent to be examined as a witness either for or against the alleged will. The words of the enactment are that "no person, on account of his being an executor of a will, shall be incompetent to be admitted as a witness to prove the execution of such will or to prove the validity or invalidity thereof." Here the executor was offered by the defendants as a witness to prove the invalidity of the alleged will, and the statute, in express terms, makes him competent for that purpose unless his being a party plaintiff to the issue is sufficient to exclude him. If that were so, the object of the statute might always be defeated by making the person named as executor a party to the issue, a result which the courts are not at liberty to allow. Indeed, it is said that to the issue of devisavit vel non there are, strictly, no parties, it being in the nature of a proceeding in rem. See Enloe v. Sherrill, 28 N.C. 212; Love v. Johnston, 34 N.C. 355, and other cases. Hence the declarations of persons appearing on the record as codefendants are admissible or not, according to their interest, and not according to the side of the issue on which they are placed. It is (410) certainly within the power of the Legislature to make one who is a party to the issue, in the strict sense of the common law, a witness either for or against himself in a civil case, of which we have instances in the book-debt law, and in issues of fraud made up under the insolvent law. See Revised Code, chap. 15, and chap. 59, sec. 13. Much more, then, can an executor be made competent as a witness in an issue to which, though he may be a party in some sense, he is not so in the strict common law sense. This consideration makes it easier for us to adopt a construction of the act which was intended to give the benefit of an executor's testimony to every person who should be interested either in the establishment or defeat of a paper writing propounded as a will. In the present case the executor was offered as a witness against his interest, and we think the act referred to makes him competent, and it was therefore error in his Honor to reject him.
PER CURIAM. Venire de novo.
Cited: Vester v. Collins, 101 N.C. 117.