M'Ilroy v. M'Ilroy

The opinion of the court was delivered by Gibson, C. J. The witness is the son of the testator, and was named an executor and a-legatee; but, having renounced the executorship, and parted with his legacy to' his sister and her husband, the court admitted him as competent to prove the execution of the Will. Qne ground of objection, that he is incompetent from interest [434] which existed when the will is supposed to have been made, was overruled in Kerns v. Soxman, 16 Serg. & Rawle, 315; and the question, therefore, is, whether he now stands clear of interest as a legatee. The release, as it is called, to his sister and her husband, was an equitable assignment; and, the witness could not be affected by the verdict, whether the will were established or not, as the note given for the consideration, contained a stipulation, that it should be paid in any event. He stood, therefore, precisely as any other disinterested assignor, who is a competent witness, whether he has parted with his property in the thing, before suit has been brought to recover it, or afterwards. Steele v. The Phœnix, 3 Binn. 306, in which this was directly decided, perhaps, for the first time, is not only consistent with the principles of all the English and American modern authorities, but particularly fortified by Browne v. Weir, 5 Serg. & Rawle, 401; Jacoby v. Laussatt, 6 Serg. & Rawle, 300; Patton’s Administrators v. Ash, 7 Serg. & Rawle, 116; Richter v. Selin, 8 Serg. & Rawle, 425; Fetterman v. Plummer’s Administrator, 9 Serg. & Rawle, 20; North v. Turner, 9 Serg. & Rawle, 244; Stoever v. Stoever, 9 Serg. & Rawle, 434; Dornick v. Reichenbach, 10 Serg. & Rawle, 84; Porter’s Executors v. Neff, 11 Serg. & Rawle, 208; Willing v. Peters, 12 Serg. & Rawle, 177, and Willing v. Consequa, 1 Peters, 307: a phalanx of authorities, which, were I even so inclined, I should deem myself incompetent to overthrow. But they are in accordance with the spirit of the age which has brought order out of confusion, and of the rude anomalies of early times, when the jury was frequently plunged into darkness by a suspicion, that any light which was not of the very purest kind, might lead them astray, constructed a system of principles, founded in technical reason, no doubt, but consistent at least with each other. Not the least valuable among these, is that principle which prevents a witness from being excluded on the ground of interest, where the legal consequence of the verdict will not be the gain or loss by him, of a right which may be made a subject of contest in a court of justice. What is the objection here? Not that the right of the witness to recover the consideration of the assignment, will be made better or worse by the verdict; but, that there may possibly be a secret agreement, that the legacy shall be re-assigned as soon as the will shall have been established; and, that thus, a party may in reality be a witness in his own cause, without affording his antagonist the same advantage. But such an agreement could not be enforced, and, like every other which rests on the honour of the parties, it would furnish an objection only to the witness’s credibility. We-must, at least, suppose that jurors are capable of weighing and making proper allowance for motives-that may create a bias, for if they are not so in fact, the boasted excellence of the trial by jury, is a miserable delusion. As to the inequality of advantage between the parties, it is one of those inconveniences which necessarily spring from the imperfection of human institu [435] tions; and which cannot be remedied without perhaps producing something worse. On principle and authority, therefore, it seems to rfi'e the witness was properly admitted. Huston, J. and Tod, J. dissented. Judgment affirmed.