By the Court.
delivering the opinion.
[1.] The plaintiffs in error insist that the Court below erred in granting a new tria? in this case. First, on the ground that the testimony of John M. Barksdale, was improperly admitted. Second, on the ground that the admissions of Anderson, who was the propounder of the will, the executor thereof, and legatee
It is to be recollected, that the interest of the witness in any legacy, to which he might be entitled under (he instrument purporting to be the old will, does not become certain and fixed, until that instrument shall be established and admitted to probate, as the last will and testament of the testatrix; non constat,
Were the admissions of Anderson, who was the propounder of the paper offered for probate, the nominated executor therein, and legatee under the same, competent evidence for the consideration of the Jury at the trial ? The general rule is, that the declarations of a party to the record, or of one identified in interest with him, are, as against such party, admissible in evidence ; and this general rule admitting the declarations of a party to the record in evidence, applies to all cases where the party has any interest in the suit, whether others are joint parties on the same side with him, or not, and howsoever that interest may appear, and whatever may be its relative amount. 1 Greenleafs Ev. sections 171, 172. Spargo vs. Brown, 17 Eng. Com. Law Rep. 526. The argument against the admission of this testimony is, that it will have the effect to enable a party to the record, who has a small legacy under a will, by fraud and corruption to make admissions which may destroy other legacies under it, ten times greater than his own. However true this abstract proposition might be, when applied to such a case as is supposed, it is a sufficient answer to say, that no such a state of facts is presented by this record. The facts of this case are such as required a practical application of the general rule of evidence. The party to the record in this case was not a mere naked trustee, without any interest in the subject-matter of the litigation; but on the contrary, was deeply interested in it. In fact, the main ground of attack made on the instrument offered for probate, is on account of the manner which it was procured by
Although the other legatees, under the paper offered for probate, might have a larger interest under it than the propounder of it, who is a party to the record, seeking to establish it, not only for his own benefit, but for theirs also — still they are identified in interest with him, and the general rule of evidence is applicable, both to him and them.
In Davis vs. Calvert et al. (5 Gill, and Johns. Rep. 269,) it was held that declarations adverse to the will, made by the executor, who was a party to the record, and a contingent devisee representing every interest under the will, were competent evidence to go to the Jury on the trial of a caveat to the will. This case appears to have been well considered by the Court, and is directly upon the point. The Court below, on the trial of this cause, took the true and legal view of these questions, when it admitted the evidence; but erred in reversing its own judgment, and granting the new trial, on the ground of its improper admission.
[2.] In relation to the third position taken against the granting of a new trial in this case, by the counsel for the plaintiff in error, and which was so elaborately and satisfactorily argued by them, we have to say, that had we found it necessary to have affirmed the judgment of the Court below, on the two first grounds taken; yet, we should not have been disposed to have disturbed the verdict of the Jury even then, on the facts presented by this record. The rule of law undoubtedly is, that whenever the capacity of the testator, or testatrix, at the time of the execution of the will, is in any degree doubtful, there must be proof of instructions given, or of reading it over; the more especially, when the will is drawn by one who takes a beneficial interest under it.
In Billinghurst vs. Vickers, (1 English Ecclesiastical Rep. 70,)