Opinion
(December Term, 1845.)
1. A petition was filed for the reprobate of a will on the ground that the supposed testator was non compos mentis. A., and B., his wife, joined in the petition, she being one of the next of kin. Afterwards A., the husband, caused himself to be joined with the executors in propounding the will, leaving his wife still one of the caveators. Held. that on the trial of the issue devisavit vel non the declarations of A. were not admissible in evidence to prove the incapacity of the supposed testator.
2. An issue to try the validity of the will is not an adversary suit; there are strictly no parties to it.
3. Where a will is propounded, if the executor decline to prove it, or if there is ground for believing that the executor will not faithfully perform his duty, the court will permit any person who is interested in supporting the will to join with the executor in propounding it, or to propound it alone. But the party applying for such an order must show that he is not a mere intruder, but that he either has or believes he has an interest in establishing the will.
4. When the declarations of any party to an issue devisavit vel non are admitted in evidence, it is because of the rule that the declarations of any one against his interest is legal testimony as against him.
APPEAL from HAYWOOD Fall Term, 1845; Bailey, J. (213)
Guion for plaintiffs.
Francis for defendants.
At Spring Term, 1843, of the court of pleas and quarter sessions of Haywood County a paper-writing, purporting to be the last will and testament of Abraham Enloe, deceased, was by the executor therein named brought forward and propounded to the court for probate. It was admitted to probate in the common form. At the same term some of the next of kin of Abraham Enloe filed a petition for reprobate, which was ordered by the court. Among the petitioners were John Mingus and his wife, Mary, the latter being one of the children of the deceased, and entitled, if the paper was rejected as the last will and testament of Abraham Enloe, to a distributive share of his estate. Upon setting aside the probate first had, the court ordered an issue to be made up of devisavit vel non, and the petitioners, including John Mingus and his wife, Mary, were made coveators. After the case had been so pending for some time John Mingus came into court and had himself made a party as one of the propounders with the executors, his wife still remaining a caveator. Upon the trial of the issue in the Superior Court the defendants contended that the paper-writing was obtained from the deceased by the undue influence of his wife, and in order to show it offered in evidence the declarations of John Mingus, who wrote the will, which declarations were made immediately after the death of A. Enloe. The evidence was objected to on the part of the executors, but was received by the court. A verdict having been rendered for the defendants, the plaintiffs appealed.
John Mingus and his wife were among the petitioners to set aside the probate of the will. When the order is made, and the issue made up, they take their position on the record as opponents (214) of the will; shortly after, without any reason assigned, he is transferred from the opposing to the propounding side of the issue. For what purpose is this done? No reason is assigned, but it lies too near the surface to be hidden. It became necessary to use his declarations in evidence to defeat the will. While he continued a caveator, this could not be done, and the bungling device is resorted to by him of taking his place among those who were endeavoring to establish the script. But why, if his testimony was so important, did he not represent himself as a witness in the case in behalf of the caveators? They, doubtless, would have been willing. But it did not suit the purposes or views of the parties. It was much more convenient to take his declarations than to subject him to a cross-examination upon oath, which might have shown that his opinion in the matter was worth nothing. By transposing his name he was enabled to obtain the benefit of his own testimony to subserve his own interest. He was a party to the issue in no other light than as the husband of his wife; as John Mingus, he had no concern with it. His wife was still a caveator. But the court erred in permitting his declarations to be used at all. An issue to try the validity of a will is not an adversary suit; there are strictly no parties to it. When the will is propounded by the executor, he represents all whose interest it is to establish the paper, and no one can be joined with him and against his will except by order of the court. If it is made to appear by one who is interested, that there is danger that the executor will not faithfully perform his duty, as that he is interested to oppose the probate, the court may and will associate such party in interest with the executor, but not otherwise. And should the executor, upon propounding the will, decline to prove it, as he may do, or to qualify as executor, the court may admit any one as a propounder who is interested in so doing and who establishes his interest by his affidavit. 1 Wil. on Eq., 126; 1 Godol. Pr., ch. 20, sec. 2. The party applying must show that he is not a mere intruder, but that he (215) either has or believes he has an interest in establishing the will. No one, therefore, ought to be permitted to propound a will for probate or join an executor who is not, in good faith, interested in so doing. Nor could a case be imagined in which the necessity of the rule is made more apparent than in the present. By a manifest trick Mr. Mingus places himself in a position wherein his own declarations can be used to subserve his own interest, in palpable violation of one of the fundamental rules of evidence, and yet apparently under the sanction of the law itself.
Where a will is brought into court in obedience to its order, or in compliance with his duty by an executor, it is in the possession of the court; its jurisdiction is over the thing itself, and it cannot be withdrawn by any one, but remains among the records of the court. If contested, it is the duty of the court to cause an issue of devisavit vel non to be submitted to a jury. In this issue there are strictly no parties; both sides are equally actors, in obedience to the order directing the issue. St. John's Lodge v. Callender, 26 N.C. 343. And when the declarations of any party to the issue are admitted as evidence, it is because of the rule that the declarations of any one against his interest is legal testimony as against him. It has, therefore, been ruled in this State that in an issue of devisavit vel non, when the parties are regularly constituted, their declarations are evidence against them. McRainy v. Clark, 4 N.C. 698. But in order to render these declarations evidence, they must appear to be made by a party interested in the matter, and against his interest. Here, Mingus, as far as appears to us, was interested in setting aside the will. His wife, through whom alone he could appear in the cause, was a caveator, because, as we presume, interested to set it aside. Separated from her, he had not the (216) shadow of an interest. He ought not to have been permitted by the court, in the first instance, to associate himself with the executor as a propounder. And when the issue was submitted to the jury, the presiding judge ought to have ordered his name to be stricken out and restored, as it originally was, to the position of a contester of the will. It would be a reproach to the administration of justice to suffer the law to be perverted from its due course by so flimsy a device. The transformation of John Mingus from an opponent into a friend of the will took place in the county court, and when the issue was presented for trial in the Superior Court he was apparently in his regular and proper position on the docket. The Court, then, might well suppose the evidence of his declarations came within the rule of McRainy v. Clark. Should this attempt of Mr. Mingus succeed, it will be an easy thing, hereafter, for any person interested in defeating a will to do so.
PER CURIAM. Venire de novo.
Cited: Love v. Johnston, 34 N.C. 358, 365; Pannell v. Scoggin, 53 N.C. 409; Hutson v. Sawyer, 104 N.C. 3; Medlin v. Board of Education, 167 N.C. 243.