Mackrell v. Wolf

Mr. Justice Paxson delivered the opinion of the court, January 7th 1884. This record presents the single question whether the paper upon which the suit below was brought was sufficiently proved to entitle it to go to the jury. It was admitted by the learned judge below, and this ruling was assigned for error here. This was an action of debt brought by Charles F. Wolf et al. as heirs of Charles F. Wolf, deceased, against Agnes A. Maekrell, executrix of James Maekrell, deceased, upon two sealed instruments for the payment of money, purporting to be signed by James Maekrell, who was the testator of the defendant below. In each paper the promise to pay was “ to the heirs of Charles Frederick Wolf inside of twenty years.” Both papers were signed by Emily Wolf as a subscribing witness. [424] It was admitted that she was one of the heirs of diaries' Frederick Wolf, deceased, and had she lived would have been a necessary party plaintiff. At the time of the trial below she was deceased and the plaintiffs offered to prove her hand writ ing as a subscribing witness, which was allowed by the court. We are of opinion that it was error to admit this evidence. At the time Emily Wolf signed the papers as a witness, she was an interested party, and hence disqualified. When the ease was called for trial she could not have been examined, if living, for the reason that the suit was against an executor. The rule in such cases is that where a subscribing witness to a bond is interested therein, as well at the time of attestation as at the trial, he cannot be examined as a witness to prove the execution, nor is proof of his handwriting sufficient for the purpose; Swire v. Bell, 5 D. & E. 371; Nelius v. Brickell’s Adm’r, 1 Haywood 25. Where, however, a subscribing witness becomes interested after subscribing, even by his voluntary act, his handwriting may be proved : Hamilton v. Marsden, 6 Binn. 45, It was urged, however, that the Act of 1869 having been passed after the attestation and before the trial, the case does not come within the rulings above cited. We are unable ’to see what the Act of 1869 lias to do with this case. It does not apply to actions brought by or against executors or administrators. But it was urged that if the paper had been executed after the passage of the Act of 1869, the subscribing witness would not have been disqualified upon the ground of interest, and if so, it would be competent to prove her handwriting upon the triah We do not propose to decide upon the effect of the Act of 1869 in the case of a subscribing witness, for it is not necessary to this case. The Act did not operate when the papers were signed, for it had. not then been passe&h It did not operate when the cause was tried for the reason already stated. All the Act does is to permit interested persons to testify in certain cases, with a proviso tliat in a particular class of cases it shall not apply. The case in hand belongs to the latter class. The judgment is reversed and a venire facias de novo awarded.