Opinion
June Term, 1823.
A. became the subscribing witness to an instrument executed by his father. On the trial the handwriting of A., who lived without the State, was proved. The defendant then offered the deposition of A., taken after the death of his father, to prove that the instrument never was delivered. It appeared that the father of A. had made a will, and it was Held, that the deposition was admissible in evidence until the plaintiff, by the production of the will, showed an interest in A., the witness.
COVENANT, brought on an instrument signed by the defendant Hayer and by Pickens. On the trial at MECKLENBURG, before Daniel, J., the plaintiff called on witness to prove the handwriting of William Pickens, subscribing witness to the instrument, who resided without the State. They proved not only the handwriting of the witness, but also that of the obligors. The defendant then offered to read the deposition of the said William Pickens, taken since the death of the obligor, Samuel Pickens, to prove that the instrument never was delivered. This testimony was objected to because William Pickens was the son of Samuel Pickens, the obligor. The will of Samuel Pickens was not introduced, and it did not appear to the court that William Pickens had any interest under the will, or that any part of the estate of Samuel Pickens was left undisposed of by the will, but it was proved that if there was no will he was an heir and distributee of the said Samuel. The defendants further contended that they had an interest in the testimony of (423) W. P. at the time the transaction took place, and any subsequent interest thrown on the witness by the act of Providence or the operation of law, should not deprive them of his testimony. The court permitted the deposition to be read, and it appeared from it that the instrument had never been delivered, but was surreptitiously obtained by plaintiff and put in suit. The jury found that the instrument was not the act and deed of the defendants. A new trial was moved for on the ground that W. Picken's deposition was improperly received; the motion was overruled, and from the judgment rendered plaintiff appealed.
Wilson for plaintiff.
Gaston contra.
If the father of the witness whose deposition is objected (425) to had died intestate, I think the deposition ought not to be read for an obvious reason, that the rights and property of the father by law devolving on the son, he would thereby be interested in this suit and of course would not be competent to give evidence; but it appears that the father made a will, in which no doubt he has disposed of all his property; perhaps he may have given it, or part of it, to this very son, or may have given him nothing. By making a will we may conclude that nothing has fallen to him by operation of law, for if the father had been contented with the disposition which the law would have made of his property he would not have made a will. I think as an interest in the son was not shown by producing the will of the father, the court were right in receiving the deposition of the son, and a new trial ought not to be granted.
TAYLOR, C. J., concurred in this opinion.