Pannell v. Scoggin, 53 N.C. 408, 8 Jones 408 (1861)

Aug. 1861 · Supreme Court of North Carolina

53 N.C. 408, 8 Jones 408

DAVE PANNELL, Executor, v. LEWIS SCOGGIN and others.

Under the act of Assembly, Revised Code, chapter 119, section 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.

This was an issue devisavit vel non, tried before Osborne, J., at the Phil Term, 1860, of Eutherford Superior Court.

One of the questions, presented on the trial was, whether the person named in the script, as executor, and wlio 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 provisions had been omitted by the draftsman by mistake, yet, if the testator had published the will as it was, and had the capacity, required by law, as had been explained to them, they should find for the plaintiff.

The caveators again excepted.

Gaither, for the propounders.

Logan, for the caveators.

Battle, J.

In the instructions given to the jury upon the questions set out in the bill of exceptions, we entirely concur, and we do not deem it necessary to add any thing 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 the 16th day of August, 185S, which is since the Revised Opde went into operation, and by the 9th section of the 119th chapter 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 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 (kvisavit ml non, there are, strictly, no parties; it being in the nature of a proceeding in r»; see Enloe v. Sherrill, 6 Ire. 212; Love v. Johnston, 12 Ire. 355, and other cases. Hence, the declarations of persons appearing on the record as contestants, are admissible or not, according to their interest, and not according to the side of the issue on which they are .placed. It is 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, section 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 vras, therefore, error in his Honor to reject him.

The judgment must be reversed, and a venire de novo awarded.

Per Curiam,

Judgment reversed.