Montgomery v. Grant

The opinion of the court was delivered, by Sharswood, J. This was a feigned issue directed by the Register’s Court to try the validity of a paper writing, propounded as the last will and testament of Isabel B. Montgomery, deceased, bearing date November 23d 1865. Mrs. Montgomery had executed a previous instrument of November 18th 1865, the original validity of which was not disputed, but the contention was only as to the second one, which revoked the first. The parties to the issue were the executors and persons claiming under the first, as plaintiffs, and those under the second, as defendants. Adeline Mack and Julia Duval, two of the residuary legatees under the instrument of November 23d, were not named as parties. They were offered as witnesses for the defendants, and having severally executed renunciations or releases to the executors, were admitted and examined. Their competency is the only question now presented. It is not denied that they would have been entitled to a larger share of the estate under the second than under the first paper. Being thus beneficially interested at the commencement of the proceedings, they were substantially parties to the issue, though not named: Asay v. Hoover, 5 Barr 21; Carter v. Trueman, 7 Id. 315; Burrows v. Shults, 6 Id. 325. They were, therefore, liable for costs, and from this responsibility could not discharge themselves by a release. The opposite parties have a right to look to those who are beneficially interested in the suit: Gallagher v. [247] Milligan, 8 Penna. Rep. 178. This, too, was the rule as settled in England before the change recently introduced in the law of that country on the subject of the competency of witnesses. It will be presumed that the proceeding was instituted by the direction of the party interested; and therefore in Bell v. Smith, 5 B. & C. 188, in an action by the brokers on a policy of insurance, one of the parties for whose benefit the policy was effected, having released to the plaintiffs, was offered as a witness, and it was held on error in the King’s Bench that he was incompetent by reason of his liability for costs. C. J. Abbott said: “ There can be no doubt that originally he was substantially, although not nominally, a plaintiff in the cause; and we ought not to be astute to give effect to that which makes the real plaintiff a witness. The action being for his benefit, although brought in the names of the brokers, it must, until the contrary is shown, be presumed that it was brought by him and by his authority.” Now, admitting that a responsibility for costs would not attach to a party, who had renounced all claim before the proceedings were commenced, or who, never having made any claim or taken any part in the contest, should execute a formal renunciation or release before examination, yet that must be made to appear affirmatively. The prima fades is against it. This was not done in this case. In the examination of the witnesses on their voir dire, the contrary rather appeared; certainly the presumption was not removed by anything which was elicited. Mrs. Mack admitted that she had retained counsel to attend to her claim, and Miss Duval had been frequently at his office in relation to it. We are of opinion, therefore, that these witnesses were incompetent, by reason of their personal liability for the costs of the proceeding. This renders' it unnecessary to examine any other ground of objection to their competency. Judgment reversed, and venire facias de novo awarded.