The act of 1789, requiring all tils living A witnesses to be produced if to be had, means, if the persons, attesting are competent to be witnesses at the time of the trial of the issue devh-ad’t vel non • but if any of them has become incompetent by means of an interest accruing alter the attestation, as by the death of a legatee to whom the witness-is'entitled to succeed, or; by becoming informers ; the person endeavoring to prove the will, need not offer ouch witness, 2d t Although it is insisted,that a witness; shall not be produced by the opposer of the will to deny his attestation ;,and that it would be productive of ill const quences io the public if a man who had undertaken to. the testator that,he would, support the "will, should be allowed, against the undertaking to act a contrary part; and that such a rule would.expose many good wills to be overturned and the wiOic-rc - to temptation where the estate was considerable And notwithstanding the case in 4 Barrow, 2224, I am of opinion the opposer of the will may offer the attesting witness to disprove, the sanity of the testator».
Hampton v. Garland, 3 N.C. 147, 2 Hayw. 147 (1801)
July 1801
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North Carolina Superior Court
3 N.C. 147, 2 Hayw. 147