In Re the Will of Young

Faircloth, C. J.: The script, found in the record, was offered to the clerk as the nuncupative will of W. E. Young for probate, and was caveated by the heirs and distributees of Young. The issue devisavit vel non was transferred to the Superior Court for trial. The offer to probate was made by J. P. Pearrington, one of the witnesses and the largest creditor, no executor being named. On the trial, the witness Fearrington was asked to state the declarations of Young. This was objected to by the- caveators and excluded by the court as incompetent, under Section 590 of rFhe Code. Non-suit was taken and the propounder appealed. A similar case was Hutson v. Sawyer, 104 N. C., 1, and cases cited, in which it was held that the probate of a will was a proceeding in rem, to which there is strictly no party — that whether the acting parties are silent or withdraw, the matter is in custody of the law, and the court must retain, determine and settle the issue — and that the parties cannot have a judgment of non-suit and thus relieve the court of its duty. As the caveators did not appeal from the judgment of non-suit, we do not further consider it. The witness, not being a party and not a distributee or legatee, is in no way interested in the issue, as a creditor, it is immaterial to him how the issue may be determined. In Vester v. Collins, 101 N. C., 114, it was held that the act of attesting the execution of a will is not a per *361 sonal transaction with the deceased, within the prohibition of Section 590 of The Code. Such a witness is the witness of the law and not of the parties. Looking at the law before, and under The_ Code, we hold that the judgment excluding the testimony of Eearrington was erroneous. Pepper v. Broughton, 80 N. C., 251, was relied on as contrary decision. It does not clearly appear to be so on close examination. It was a decision under The Code of Civil Procedure, Section 343. Two wills were offered and both issues submitted to the same jury-— Pepper caveating one, and Broughton the other. None of the heirs or devisees of the testator took any part in the controversy. The question was as to the conversation between the testator and Broughton at sometime; when, not stated ; and the court excluded Broughton’s evidence, he being interested as legatee and in the event of the action, to which Pepper and Broughton- were parties. The decision treats the probate as a matter in rem and the case seemed to turn on a matter collateral to the main issue. If however the opinion means what is claimed for it under C. C. P., Sections 342 and 343, it must be considered overruled in Vester v. Collins, supra, under The Code, Section 590. So, Fearrington not being a party and not interested as a legatee or distobutee, and being indifferent as a creditor, he can be heard to testify to the testator’s declarations as if he were a stranger. Error.