Vester v. . Collins

Smith, C. J., (after stating the case.) The present statute unlike that in force under the Revised Statutes, which invalidated the will unless it was attested by at least “ two witnesses no one of whom shall be interested in the devise of the lands ” as a means of transmitting the title therein to the devisees, in such case, applying to wills of both real and personal estate, avoids only the devise or bequest to such attesting witness and to his and her wife and husband and privies, and leaves the other dispositions made of the testator’s property in unimpaired force and operation. The Code, §2147. The concluding clause of the section in direct words *117 declares ” that such person so attesting shall be admitted as a witness to prove the execution of such will or the validity or invalidity thereof.” Before the fundamental change in the law of evidence in: troduced by the enactment made in 1866 and subsequent amendments, among which is that substantially embodied in section 590, it was decided that one appointed executor and propounding the will, though called a plaintiff to the issue, could nevertheless be examined as a witness by the caveator as he could be in support of the script. Powell v. Scoggin, 8 Jo., 408. In the opinion Battle, Judge, speaking for the Court, uses this language: 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.,” but it has since been declared in Pepper v. Broughton, 80 N. C., 251, that the contestants and parties are within the purview of the disqualifying section. For stronger reasons must executors and attesting witnesses be now allowed to testify since incapacity, growing out of interest, has been entirely removed and parties to the action may be heard. If then the formal execution of the will must he proved, by the testimony of the subscribing witness, or at least by two of them if there are more than that number, unless when, not produced “ are dead or n side out of the State or are insane or otherwise incompetent to testify,” Section 2148, it might result in a total failure to establish a well executed will, if those who attest it are excluded by the general terms of the disabling section, and more especially because the very purpose of the law is to secure this testimony to be used, and which can only be used after the testator’s death. If this were not so “ the object of the statute,” in the language of Battle, Judge, delivering the opinion in Powell v. Scoggin, supra., “ 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 *118 allow.” The remark applies with equal force to an attesting witness, competent at the time, upon whom an interest may afterwards devolve, to secure which he comes in to continue the prosecution of the cause. Again, it is more than questionable whether a person present to witness an act of testamentary disposal of property, and who attests the act as such, is a party to such a “transaction” as is contemplated in The Code. One may prove a conversation between others which he over-hears because he is not a party to it. Halliburton v. Dobson, 65 N. C., 88; Gilmer v. McNairy, 69 N. C., 335; Treadwell v. Gra ham, 88 N. C., 208. The conversation or transaction must be personal to fall within the inhibition. But aside from this, we are clearly of opinion that the disqualifying enactment, directly repugnant to the law requiring the presence of attesting witnesses at the trial of an issue involving the validity of the will to prove its execution when accessible and mentally able to give evidence, does not compiehend this class of witnesses who are denominated witnesses of the law and not of a party, and who become such to establish the execution and validity of the instrument necessarily after death. It would be absurd to require persons to attest a will in order to prove it when the maker was dead, and then reject the testimony because of the death, under another part of the law, enacted at the same time. Not less untenable is the exception to the admission of evidence of the kind relations subsisting between the testator and his wife, and her permitting him to take and use the sum of $500, coming to her from the estate of a deceased brother, as tending to account for his giving his entire estate to her in answer to proof of declarations of the deceased,made after the execution of the will, that he did not intend that any of the Vester family (his wife being one of them) should have any of his property, and that he would prefer to see it burned up rather than fall into their hands. *119 It was also appropriate to repel the inference drawn from the disparity in their agt s that it was an unnatural donation .and which was pressed in the argument for the caveators. There is no error and the judgment must be affimed, and it is so ordered. Affirmed.