While I concur in the opinion of Justice SAYRE in the treatment of this case upon most of the points involved, I cannot agree that the trial court did not commit reversible error as to the ruling hereinafter discussed.
The charge upon which the appellant was adjudged guilty proceeded upon the theory that one Amanda Knox employed him professionally to write her will, and instead of this he prepared a deed, naming the janitor as grantee, and subsequently had the said janitor convey the property to the appellant's wife; that the said Amanda Knox was a very old and ignorant negro woman, and the appellant fraudulently had her execute a deed while under the impression that she was signing a will. The appellant's contention was that she did not employ him to prepare her will, but to sell her land, and that the deed was made by her with full knowledge of its character and for the purpose of enabling him to sell the land and make title to the purchaser. Therefore a conflict was presented as to whether or not she employed him to prepare a will and signed the deed thinking it was a will, or made him the deed knowing it was such an instrument and for the purpose of enabling him to sell the land for her. I think the trial court erred in not permitting the witness, Will Hall, to testify as to the statement made him by said Amanda Knox, who was dead at the time of the trial, to the effect that, after that, meaning, of course, after the happening of other matters leading up to and during the visit of witness and Amanda Knox to appellant's office, he had a conversation with said Amanda Knox wherein *Page 478 he asked if she had effected a sale through Mr. Roy McCord, and she said that "he had made a sale for her and she was going to get her money shortly." This evidence tended to corroborate the appellant's theory and to discredit the charge that Amanda employed him to prepare a will, and it was clearly against the pecuniary interest of said Amanda, for, if she made a will, she had made no irrevocable disposition of her property, but, if she made a deed, she placed it beyond recall. It is not a question as to whether the said Amanda or her estate was interested in the outcome of the present controversy, but whether or not the statement she made was, at the time, contrary to her pecuniary or proprietary interest.
As said in Jones on Evidence, § 323: "It has long been settled as one of the exceptions to the general rule excluding hearsay, that the declarations of persons since deceased are admissible as evidence, provided the declarant had peculiar means of knowing the matter stated, if he had no interest to misrepresent it and if it was opposed to his pecuniary or proprietary interest."
To like effect was the rule stated by our own court in the case of Hart v. Kendall, 82 Ala. 144, 3 So. 41, 43, in the following language: "While the general rule is that the declarations of a person as to a transaction with another, being regarded as hearsay, do not bind a third person, whose rights are involved, such declarations, when contrary to the pecuniary or proprietary interest of the declarant, and he is deceased, are competent evidence against third persons, though their rights may be affected. Humes v. O'Bryan, 74 Ala. 64; Trammell v. Hudmon, 78 Ala. 222."
I am therefore of the opinion that the trial court committed reversible error in sustaining the objection to let the witness Hall testify as to the declarations of Amanda Knox as above referred to and discussed and Justices GARDNER, THOMAS, BOULDIN, BROWN, and FOSTER concur. The said Justices also hold that the trial court erred in not permitting the witness Hall to testify as to the conversations with said Amanda Knox preparatory to calling on McCord and of the statement as to the nature and character of the business she desired him to transact for her. They think that these declarations or statements are explanatory of the motive, intent, or purpose for which she went to see McCord and what she employed him to do (that is, whether to prepare a will or convey the land by deed for the purpose of having him sell it for her), and that this also falls within the exception to the rule against hearsay evidence, and that the same tended to corroborate the appellant's theory of the transaction.
The judgment of the circuit court is reversed, and the cause is remanded.
All the Justices concur, except SAYRE, J., who dissents.