Opinion
(Fall Riding, 1801.)
1. On the trial of an issue devisavit vel non a witness who was disinherited at the time of attestation, but has become interested before probate, need not be offered.
2. The caveator of a will may call upon a subscribing witness to disprove the testator's sanity.
The act of 1789, requiring all the living witnesses to be produced if to be had, means if the persons attesting are competent to be witnesses at the time of the trial of the issue devisavit vel non; but if any of them has become incompetent by means of an interest accruing after the attestation, as by death of a legatee to whom the witness is entitled to succeed, or by becoming informers, the person endeavoring to prove the will need not offer such witness.
(2) Although it is insisted that a witness shall not be produced by the opposer of the will to deny his attestation, and that it would be productive of ill consequences to the public if a man who had undertaken to the testator that he would support the will should be allowed against the undertaking to act a contrary part, and that such a rule would expose many good wills to be overturned and the witnesses to temptation where the estate was considerable, and notwithstanding the case in 4 Burrow, 2224, I am of opinion the opposer of the will may offer the attesting witness to disprove the sanity of the testator.
Cited: Old v. Old, 15 N.C. 502; Bethell v. Moore, 19 N.C. 314.