Varner v. Goldsby

By the Court. McDonald, J. delivering the opinion. [1.] Before the Court announced its decision upon the motion submitted by caveator’s counsel, to discharge the security ■oil the appeal, for the purpose of rendering him competent to testify on his side of the case, the counsel for propounder signed a written consent that both the prochein ami, and his security on the appeal, should be considered as witnesses in the case, and be examined as fully as if they were not parties to the record, which consent the Court ordered to be put on the minutes. The consent thus given, for the examination of the witnesses, accomplished all that the motions submitted, proposed to effect — to allow them to be examined as legal wit nesses in the cause. The ordering the consent to be entered on the minutes, was a virtual rejection of the motions to dismiss theprochein [305] ami, and to discharge the security on the appeal. It is urged by counsel for plaintiff in error, that the consent that parties may be examined as witnesses, leaves them open to impeachment by counsel, because of their relation as parties to the case. This is a wrong interpretation of the consent. They are to be examined as fully as if they were not parties to the record. The Court would not allow a party to avail himself of the position of witnesses as parties to the record to assail their credit, when his consent to consider them as witnesses, had induced the Court to retain them in that position. The waiver was in lieu of their discharge from the case, and must be as effectual in all respects. The only objection to them, according to the decision of this Court, is their liability for costs, and if they ought not to be held liable for costs, they ought not to be excluded from testifying. Central R. R. & Bnk. Co. vs. Hines, Perkins & Co., 19 Ga. Rep. 203. Samuel D. Varner is the next friend only, and has no interest in the event of the suit, if he be not liable for costs. His security on the appeal can have no greater interest than he has, in the result of the cause. Samuel D. Varner, as the next friend of an infant who is one of the next of kin of the testator, calls on the executor to prove the will in solemn form. The record shows that the infant is poor, without the means of paying the costs, on the termination of the suit unfavorably to her object. But independent of her circumstances, she would not be liable for costs, unless the proceeding is unjust and vexatious. She calls on the executor to prove the will in solemn form. That is all. The executor might have done that in the first instance. Perhaps it was his duty to have done it. This infant is one of the next of kin of the intestate and as such is a favorite of the law. The “ interests of the next of kin, in cases of intestacy, accrue by mere operation of the law, and they have the plainest and most undoubted right to be satisfied, that those interests are not defeated, but [306] upon good and sufficient ground.” Urquhart & Waterman vs. Frieber, 2 Eng. Eq. Rep. 425. The next of kin have a right to put executors on proof of the will, and this has been assigned as a reason for not giving costs. Reeves vs. Freeling, 1 Eng. Ec. Rep. 185. Costs may be given, however, against the next of kin when the proceeding is vexatious. [2.] The spirit of our Legislation is, that the doors of justice shall be closed against none, on account of poverty. If this were a case in which the party would be liable for costs on the establishment of the will, if she were of full age and unable to pay, she might have appealed without giving security. Because she is an infant, she is not to be subjected to greater hardships, nor is one who, from motives of parental duty, or a sense of justice, steps forward to her relief, to be forced to assume a responsibility which would not have rested on her if she had been of full age. We think that there was no necessity for the substitution first moved for, and the consent of the propounder of the will placed on the minutes of the Court rendered a decision of the m'otion to discharge the security on the appeal unnecessary, and no express decision was made on that. There was no error committed by the Court in ordering the consent to be entered on the minutes of the Court. We shall affirm the judgment of the Court below, with instructions to require the propounder of the will to conform the language of his consent to the interpretation herein given of it, as being more calculated to relieve the witnesses from the imputation of bias growiug out of their position as parties, than a mere construction of the consent as it stands. Judgment affirmed, with directions.