
    Davis’ ex’rs vs. Roberts et als.
    
    
      Ii objection be not made to an incompetent witness when presented in the Circuit Court, the objection is waived.
    This was an issue of devisavit vel non tried by Judge Cannon, and a jury of Hamilton county, at the March term of the Circuit Court in 1844.
    The heirs of Davis, deceased, offered Elizabeth Davis, the widow of the deceased, as a witness, she .having previously executed a release in the following words:
    “I do hereby release to the heirs or devisees of James Davis, deceased, all interest I might or could have by the laws of distribution in the estate of said James Davis, or by any provision that might have been made to me by the present will in contest in the Circuit Court of Hamilton county, or by any former will made by said James Davis, .deceased.”
    This witness was examined without objection on the ground of her interest in the estate, and a verdict was rendered in favor of the heirs, setting aside the will. A motion for a new trial was made and overruled, and judgment rendered. The executors appealed.
    In the Supreme Court it was- contended that the court below should have granted a new trial, on the ground, that the evidence of Elizabeth Davis was illegal, “because the release executed by her does not expressly release her right of dower.”
    
      NOTE. — See Richmond vs. Richmond, 10 Yerger, 343*
    
      Thompson and Lyon, for plaintiffs.
    
      Trewhitt and Gaut, for defendants.
   By the Court.

The release is sufficient, and includes her right of dower: moreover, objection to her competency not having been made on this ground in the Circuit court, cannot be made now. Had objection been made, that the release was not sufficiently comprehensive in its language to embrace her right to dower, that objection could and probably would have been obviated by the execution of another.  