
    *Riddell & als. v. Johnson’s Ex’or & als.
    March Term, 1875,
    Richmond.
    I. Wills—Draftsman as Beneficiary.—A bequest in favor of an attorney who writes the will is not . necessarily invalid.
    a. Same—Onus Probandi.—The onus probandi lies in every case, upon the party propounding- a will; and he must satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable testator.
    
      3. Same—Draftsman as Beneficiary — Suspicions Circumstance.—If a party writes or prepares a will under which he takes a benefit, that is a circumstance which ought generally to excite the suspicion of the court, and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument; in favor of which it ought not to pronounce [unless the suspicion is removed, and it is judicially satisfied that the ' paper propounded does express the true will of the deceased.
    4. Same—Same -Same—Open to Explanation.—J was an unmarried man with a large properly, having a large amount in bonds. B had been his counsel for years, in whom J had great confidence, and for whom he had a strong regard. In February 1867 B wrote J's will, in which he gave the most of his real estate to a number of his illegitimate children, who were coloured persons. He then did not dispose of his bonds; which were in B’s hands for collection. In June following J sent for B to write a codicil to Ms will, and after some previous provisions as to real estate among the same parties, and providing for the payment of his debts and expenses of administration, and any orders he might draw upon B in his lifetime out of the collections from the bonds, he gave whatever remained of these bonds in the hands of B at J’s death, to B absolutely. J had a number of next of kin, and among them two sisters, to none of whom did he leave anything. It being clearly proved that J was entirely competent to make a will; that he dictated the bequest in favor of B without any suggestion from B or any other person, and repeated it; that it was read to him. and he clearly understood it, and intended it to be as it was written: and it appearing further that he had been on ■'•bad terms with his family for years, and had expressed more than once his determination that none of them should have any of his estate; the bequest to B was held to be a valid bequest.
    This was a suit in equity in the Circuit «court of Appomattox county, brought in September 1871, by Richard Johnson and many others, heirs at law and next of kin of John H. Johnson deceased, against Albert Thornhill, his executor, Thomas S. Bocock and others, to set aside the last clause of a codicil to the will of the said John H. Johnson, deceased. The court made an order in the cause directing an issue devisavit vel non to be tried at its own bar, in which Thornhill the executor and Thomas S. Bocock, the legatee in the said clause of the codicil, should be plaintiffs, and the plaintiffs in the cause should be defendants.
    On the trial of the issue Albert Thornhill, the executor, was offered as a witness to support the will, security having been given for the payment of the costs; and he was objected to by the defendants in the issue, as incompetent on the ground that he was one of the plaintiffs, named as executor and qualified as such, and also interested in the suit. But the court overruled the objection and admitted the witness: and the'defendants excepted.
    In the progress of the trial the defendants proposed to introduce James Gooding as a witness. His wife was one of the heirs at law of the testator, and they were plaintiffs in the suit; but they had executed an assignment of all their interest in the estate. The plaintiffs in the issue objected to him as a witness, on the grounds that he and his wife were parties and he was liable for costs: and the court excluded him: and the defendants excepted.
    After the evidence had been con-eluded the plaintiffs *in the issue moved the court to give to the jury the following instructions:
    1. That the paper mentioned in the issue, in order to be the will of the testator, John H. Johnson, must be proved to have been executed by him when he was of sound mind, according to the formalities prescribed by the statute, to wit: Must be proved to have been assigned by him in the presence of the subscribing witnesses, and to have been attested by them in his presence and in the presence of each other, all being present together; and the burden of proving this is upon the plaintiffs in the issue, Albert Thornhill and Thomas S. Bocock.
    2. That the last clause of said paper, so far as it gives a beneficial interest to Thomas S. Bocock, must be regarded as a testamentary bequest, and its validity tested by the laws of testamentary bequests, and not by the law of contracts.
    3. That if it be proved that Thomas S. Bocock, who wrote said paper, was at the time of such writing the attorney of John H. Johnson, and is himself a large beneficiary under its provisions, this raises a suspicion against it, and makes it the duty of the jury to be vigilant and jealous in examining the evidence in its support. But if the suspicion, which such fact ought generally to excite, be removed; and if it be proved that the said paper was prepared according to instructions freely and spontaneously given by the testator, and was distinctly read over to, and its purport understood by him after its preparation, then the jury may find that it is the true will of the testator; it being the law of the land that an attorney may take a benefit under the will of a client if no undue influence was exerted by him over the testator, and the will was not executed under any mistake or misapprehension.
    *4. That if it be proved to the satisfaction of the jury, that the said John H. Johnson, for a number of years of his life, extending down to the execution of said paper, entertained a feeling of aversion and dislike for his relations, who would by law be his next of kin and heirs-at-law, and had a fixed purpose not to give them any part of his estate, then this fact is sufficient to rebut any presumption against said paper, arising merely from the fact that none of said relations are made beneficiaries therein.
    5. That unless the jury believe from the evidence that one or both of the propounders of the will, or somebody for him or them, induced the said Johnson to make said paper, or some provision thereof, by force, coercion, or by importunity which he (Johnson) could not resist, or procured the same by some other unfair means or practice, then the said paper cannot be held void on the ground of undue influence; it being the true interpretation of the law of wills that the influence to avoid a testamentary bequest must amount to force or coercion, and impose on the testator a provision not in accordance with his own free, unbiased will.
    6. That neither sickness, old age, nor impaired intellect, even if the jury believe from the evidence that any one or all of them existed in this case, are sufficient to render void the provisions of said paper, or any of them; but if the jury also believe from the evidence that the testator at the time of executing the same “was capable of recollecting the property he was about to dispose of, the manner of distributing it, and the objects of his bounty,” then they must find that he had legal capacity sufficient to make a valid disposition of his estate.
    7. And finally, if the jury beliáVe from the evidence, *that the paper mentioned in the issue was signed and executed by the testator according to law, as set forth in the first instruction, that is several provisions were attested with the full consent of his will and understanding, uninfluenced by importunity and without any fraud practiced upon him by the propounders of the will, or either of them, or any other person, and that the testator had adequate testamentary capacity, then the said paper and all its provisions is the true will of said John H. Johnson, and it is the duty of the jury to find accordingly.
    And the defendants in the issue moved the court to give to the jury the following instructions, to wit:
    1. If the jury believe from the evidence, that on the 17th day of June 1867 Thomas S. Bocock was the sole professional adviser, as an attorney at law of John H. Johnson,
    and had been such for some years prior to-said time, and was on that day employed in his said capacity of attorney and professional adviser to prepare a codicil to the will of said Johnson, which will he had previously prepared for him on the 18th of February 1867, and did prepare the codicil to said will, which codicil is dated June 17, 1867, and was probated on the 9th day of August 1867, and that in the preparation of said codicil said Johnson had no 'aid from any other person than said Bocock, further than that Albert Thornhill, who is named as executor in the codicil, was present during its preparation, though not interfering in the matter beyond privately urging Bocock to write the bequest in his own favor when he saw Bocock hesitate to do it; and further, that when the preparation of the codicil was completed, and it was ready to-be witnessed, William T.'Pankey and James A. Agee, two neighbors, were called in to witness its execution, who read the codicil to him, and *satisfied themselves that he understood it, and then duly attested it in his presence, and at his request then, although they believe that the decedent was competent to make a will, and did fully understand what he was about, and fully understand the contents of the codicil, and that the conduct of Bocock, the attorney, was fair, and his purposes honest, and that he did not designedly take, or conceive that he was taking, any advantage of his professional influence over his client, they must find that the bequest made under such circumstances to Bocock is contrary to the policy of the law and invalid, and that so much of said codicil as contains said bequest is not the true will and testament of John H. Johnson.
    2. The jury are instructed that, under the circumstances under which the codicil of June 17, 1867, to the will of John H. Johnson was made, as shown by the testimony of the witnesses for the plaintiffs in this issue, they are bound to presume that the bequest in said codicil, contained in favor of Thomas S. Bocock, was made under undue influence.
    3. The jury are instructed that as the testamentary disposition in favor of Thomas S. Bocock, made in the codicil of June 17, 1867, to the will of John H. Johnson, appears from the evidence in this case to have been formed in Johnson’s mind in the presence -of said Bocock, and while he was actually employed as the attorney of said Johnson, in preparing the codicil to his will, and while Johnson was without any competent independent advice, they are bound to presume, from the relation of the parties, that the bequest to said Bocock was the offspring of undue influence; and even if the subsequent execution of the codicil, in the presence of the attesting witnesses, and the withdrawal at that time of Bocock from Johnson’s presence, and the *other circumstances attending the execution, should satisfy the jury that this influence had been overcome by Johnson before the final execution of the codicil, yet when Bocock subsequently heard of the wish of Johnson to alter this clause of the codicil, and contented himself with merely writing the letter and accompanying papers of June 25th, 1867, he so far failed—no matter how honest his purposes—in that full discharge of his professional duty which the law exacts from an attorney in his circumstances as to render invalid the bequest in his favor.
    
      4. The jury are instructed that so much of the codicil of the 17th June, 1867, to the will of John H. Johnson, as makes a bequest to Thomas S. Bocock, having been prepared by the said Bocock as the attorney and professional adviser of said Johnson, cannot, under the law of this court, be held as a part of the true last will and testament of said Johnson, unless it be found by them from the evidence, that in the making of so much of said codicil as makes said bequest, the said Johnson had the aid of independent advice from some competent third party; and that the mere presence of Albert Thorn-hill, who was named as executor in the codicil, and whose only active intervention in making of said codicil was his privately urging on Bocock to write the bequest in his own favor, did not constitute or furnish such independent advice.
    5. The jury are instructed, that to enable the plaintiffs in this issue to sustain so much of said issue on their part as involves the validity of that clause of the codicil of June 17, 1867, to the will of John H. Johnson, which contains the bequest to Thomas S. Bocock, they must have shown from the evidence, to the satisfaction of the jury, that Johnson was not only competent to make a will and fully understood the contents *of said codicil, but that he intended the same, at the time of executing it, as a final disposition, in the event of his death, of the property embraced in it; and that his testamentary papers in regard to said property was not formed under the influence of the presence of the said Bocock, as his attorney and professional adviser, the existence of which influence the jury are bound to presume from the relation i the parties and their presence together; and that he had, during the preparation of the codicil, or prior to its execution, such independent aid or advice from some competent third party as actually restored him, before its execution, to entire freedom ilom any such influence.
    6. The court instructs the jury that though they should believe, from the evidence, that on the 17th day of June, 1867, John H. Johnson was of competent mental capacity to dispose of his property, yet, if they should further believe from the evidence, that by the will of the said John H. Johnson, bearing date the 18th day of February, 1867, disposing of a part of his estate, Albert Thornhill was appointed the executor thereof, and Thomas S. Bocock was appointed his legal adviser thereunder, and a referee to settle any disputes that might arise under the same as therein specified; and that the said Albert Thornhill and the said Thomas S. Bocock accepted the said several trusts therein respectively imposed upon them; and further, that at and before the said 17th day of June, 1867, the said Thomas S. Bocock was and had been for some years the general counsel and attorney of the said John H. Johnson in and about all of his legal business, and that on that day the said Thomas S. Bocock was employed as such attorney and counsel by the said John H. Johnson, in and about the special business of the drafting and execution of a codicil to the said will, ^designed to be a further disposition of the estate of the said Johnson, and that the said Thornhill, appointed the executor of the said will as aforesaid, was present and took an active part in the transactions thereof, and that the said Bocock, acting as such attorney and counsel, drafted the last clause of said paper, purporting to be a codicil to the said will, with the knowledge and approval of the said Albert Thornhill, executor as aforesaid, and named as the executor in the said alleged codicil, and that the said attorney and counsel failed and omitted, with the knowledge and approval of the said executor, to attend personally to the execution of the said alleged codicil, and withdrew himself from the room of the said Johnson, and remained out of doors while the said executor, together with the other subscribing witnesses to the said paper, went into the room and by the bedside of the said Johnson to take charge of the execution of the said papers by the said Johnson as a codicil to his will, and the said paper was then executed by the said Johnson without any advice, either from the said attesting witnesses or from any other person, and that afterwards the said Johnson expressed a wish to change that clause in the said paper which directed how his property and money should be disposed of after his death, and that said wish was communicated to the said counsel and attorney by the said executor, and the said counsel and attorney did not personally attend on the said Johnson for the purpose of executing the said wish, or send to him a competent and disinterested adviser,, other than the said executor, to execute the said wish in the premises, but instead thereof, while remaining away himself, sent to the said Johnson by the said executor the letter of the 25th of June, 1867, together with the papers accompanying *the same therein referred to, and never thereafter went to see the said Johnson before his death (on the 10th day of July, 1867), and no sufficient reason appears why his said counsel and attorney should not have done so upon said special business under the circumstances of the case in view of his relation to his said client as aforesaid, and of his interest under the said alleged codicil; and that his said client was in advanced old age, and afflicted with a disease- or diseases expected soon to end in his death, and that the said executor and said confidential counsel and attorney were aware of his condition, and had notice of the same; and that said counsel and attorney, after the execution of the said paper by his said client, and before his death, was in his immediate neighborhood and failed to call and see his client upon the said subject, but •upon the death of his said client promptly went to his house, and, with the consent of the said executor, took charge and control •of the property and bonds referred to in the -said latter clause in said paper, and that he afterwards used the same with the knowledge and consent of the said executor as if the said paper were a valid codicil; and that the said Thornhill, named as executor in said will and said paper purporting to be a codicil, has never rendered any account of his transactions as executor, and has never received any money from the said counsel and attorney, or paid any debts due by said •estate, but has given and submitted the whole management of said matters under the said paper of the 17th of June, 1867, to the control of the said counsel and attorney, and the said counsel and attorney has himself rendered no account of his transactions in respect to the same, and that the property and effects which came into the hands of the said counsel and attornéy under the said *last clause of said alleged codicil were of large amount and greatly exceeding in value the indebtedness of said estate, then the jury must find that said last clause of said paper is null and void, and is not a part of the will of the said John H. Johnson.
    . And the court gave the jury the said instructions asked for by the plaintiffs in ■the issue, and rejected and, refused to give the said instructions asked for by the defendants in the issue; to which said several rulings of the court the defendants in the ■said issue excepted.
    The jury found by their verdict, “that the paper writing dated the 17th day of June 1867, purporting to be a codicil to the will of John H. Johnson, deceased, is in all its parts and provisions the true will of John H. Johnson, deceased.” And the plaintiffs in the suit, the defendants in the issue, moved the court to set aside the verdict of the jury, and to refuse to enter any decree in accordance therewith, because the said verdict is contrary to law and the evidence. But the court overruled the motion; and the plaintiffs excepted; and the court spread the ■facts proved upon the record.
    • Be it remembered, that on the trial of the issue in this case the following were all the facts proved before the jury:
    It was proved that John H. Johnson died •at his residence, in the county of Appomattox, on the 10th day of July 1867, about 3 o’clock in the afternoon. That on the 18th •day of February 1867 he made a will, which was prepared for him by Thomas S. Bocock, who was then, and had for several years before that time been his attorney at law and legal adviser in all his business matters ■requiring the aid of an attorney. That said will was witnessed by William T. Pankey, * James A. Agee and Albert Thornhill. That, on the 15th day of June 1867, Thomas S. Bocock, who had been sent for by John H. Johnson, went to the house of said Johnson late in the afternoon, and learned from Johnson that he wished him, Bocock, to prepare for him a codicil to his will; whereupon Bocock told him that it was then too late to prepare the codicil that day, and undertook to come again on Monday and prepare it; and on Monday morning, about an hour after sunrise, Bocock accordingly reached Johnson’s house again. When Bocock reached there on this occasion he found Albert Thornhill there. Albert Thornhill lived not far off, and had gone over that morning to see Johnson, not knowing anything of any purpose to make a codicil to the will. When Bocock arrived he told Johnson that he had come there to complete that little item of business, and that if he wished it done it would be necessary for Mr. Thornhill to go home and get the will, which was in his possession. Mr. Thornhill went and brought the will, and Mr. Bocock then told Mr. Johnson that he was ready to proceed; whereupon the preparation of the codicil began. Mr. Johnson, who said in the beginning that he would give nothing to his relations, had given several directions about disposing of his lands, which Mr. Bocock put in writing to his satisfaction, and they came to the disposition of his money and bonds and the residue of his estate. Mr. Johnson said he was “a little at a loss how to manage that, ” or ‘ ‘now you are too hard for me,” or some such expression; and he spoke of his money being mostly out and barred by the stay law, and said that after all his just debts were paid, and particularly if many such debts came against him as Mosby’s debt, there would be but little left; and said further, that he had thought of giving his sister Sally *(Mrs. Dunn) and his sister Betsy (Mrs. Miller) 1500 each, but that he had heard they had threatened to sue his estate as soon as he was dead, and he would give them nothing; and said further, alluding, as witnesss supposed, to his relations, that he would not give any of them anything— they might get what they could at the end of the law: and he said to Mr. Bocock and Mr. Thornhill ‘ T want you to give me your advice.” Mr. Bocock told him if he (Bocock) was to advise him the will would not be his own, but his (Bocock’s). He hesitated, and then asked Mr. Bocock how it would do to collect his money and put it in bank without interest. Mr. Bocock told him if he did so, and died without disposing of it, his relations would get it. Johnson said he did not want that; he did not want them to have it. He then asked Bocock how it would do for him (Bocock) to collect it, and hold it subject to his order. Bocock said that’l do. Johnson said suppose I draw orders on you. Bocock said he would accept them, payable when money sufficient was collected. Johnson then said now I can arrange it, and he told Mr. Bocock that if he did not order it out of his hands in his lifetime it was to be his. That it was now 11 or 12 o’clock, and Johnson called for his woman and ordered her to make a pitcher -of lemonade, which was done, and she handed a glass to Thornhill and one to Bocock, who offered his to Johnson, who declined, and remarked, “these gentlemen would probably like to have theirs spiked,” and ordered her to get his bottle of liquor. Then the business was suspended, because Johnson seemed to be tired, and he was allowed to rest until two or three o’clock, during which time Bocock and Thornhill withdrew from Johnson’s room. Then Bocock and Thornhill again entered his room, and he seemed to be asleep, when Bocock said rouse him and *let’s get to work; then the business was resumed, and Johnson said a second and third time that he wanted him (Bocock) to collect his money, and hold it subject to his orders -during his lifetime. Bocock asked what was to be done with it in case of his death. Johnson rejdied, if I do not order it out of your hands it will be yours. Bocock seemed unwilling, and refused to write that down, and said to Thornhill that he had never done anything to bring reproach on himself. Thornhill in a low voice, unheard by Johnson, who was a little deaf, told Bocock he ought to do so, as Johnson had told him several times; that Mr. Johnson had sent for him to write his will, and that seemed to be his will; and Johnson himself said, with some impatience, “I’ve told you several times, write it as I say.” Bocock then wrote it down. Johnson then asked Bocock how it would be if he (J ohnson) should draw orders on him before he had collected the money. Bocock told him he would accept the orders, payable when the money came to his hands. In the course of the preparation of the codicil, Bocock, who put it all ■down first in the form of notes, read over the notes to him several times, and the list of bonds appended to the codicil was prepared at the dictation of Johnson from memory. When it was completed, Thornhill, who had been told by Johnson that he wanted the same witnesses to the codicil who witnessed the will, sent for William T. Pankey and James A. Agee for the purpose. They came about night. Bocock, who was in the yard when Paukey came, gave him the codicil, and Pankey took the codicil from Bocock and went in and read it to Johnson. This was by candle-light. Twice during the reading Pankey asked him if he heard. Johnson both times said he did, and once said he had already heard it read. When the reading was completed *Jobnson signed it, and Thornhill, Agee and Pankey subscribed it as witnesses at his request, all three of them and Johnson being together when this was done. In the opinion of the subscribing witnesses Johnson was fully competent to make a will, and the witnesses took pains to satisfy themselves on this point. The will and codicil are in the following words and figures, to wit:
    [See at close of testimony.]
    During the preparation of the codicil, several colored people, formerly slaves of Johnson, were about the house, among them Martha, who had been kept by him as a wife, and Albert and Washington, who were reputed to be his natural children. They withdrew from the room when the writing was done, but Albert and Washington were in the adjoining room, the door of which was open, and heard and saw all that passed, as Johnson was a little deaf, and conversation with him was necessarily loud. Johnson was an old man, seventy years old or more; at least that in 1859. His health on the 17th June had become bad. He had been for some time confined to his bed, but could get up and even sit up. He continued after the 17th June to grow worse until his death. The main symptoms of his disease was dropsy and inability to retain his urine, and he required constant attention, which was chiefly given him by his woman Martha. He slept a good deal, but had a habit, many years before his death, of appearing listless and closing his eyes, when really he would be watchful and attentive.
    Between 1848 and 1860 William M. Cabell was his attorney and legal adviser. In the year 1859 Cabell prepared a will for him, by which he freed his negroes and gave to his natural children, some of whom were white and some black, the bulk of his estate, but nothing *to any lawful relation. He often, during the time Cabell was his attorney, expressed himself to Cabell as very hostile to his relations, with some of whom he had much bitter litigation, and said they had worried him all his life with law suits, and had hunted him like a wild beast, and he often declared his purpose of never giving them a cent, and to other witnesses he subsequently made similar declarations.
    By the will of 1859 he made Cabell and one James A. Wright his executors, and gave each of them $5,000 in lieu of commissions as executors.
    Some days after the codicil was executed Johnson sent for Thornhill and said to him that Susan Johnson, and perhaps others, had been telling him he had given all his property to Bocock, and had no control over it. Thornhill told him it was not so, and that he would not have witnessed any such will, and told him he would go or send for any person he (Johnson) might wish to write the codicil over for him. He said no, he wanted no one but Mr. Bocock, and that Mr. Bocock would come down after his court in Lynchburg was over. Johnson said he wanted some alteration made in the last clause of his codicil, but what it was Thornhill could not get him to say. Thornhill told him he could not wait, because he could not live long. On the 24th June, Thornhill went to Lynchburg and saw Bocock, and told him what had taken place between him and Johnson since the codicil was written. Bocock thereirpon wrote to Johnson, and sent, by Thorn-hill, a letter and two accompanying papers. [See post.]
    Thornhill took them to Johnson on the 26th June. Johnson rose up and sat on the side of the bed and read the letter, but not the accompanying papers, and said he was satisfied, and that Mr. Bocock understood 'x'the matter as he did, and that he had retained full control over his property, and if it pleased God he should live five or six months he might make some little change in the latter clause of his codicil.
    Thornhill went to see Johnson every day but two from the 17th June till he died. He lived one and a quarter miles from Johnson. When he took the letter and accompanying papers from Bocock in Bynchburg, it was understood between him and Bocock that if Johnson wanted Bocock to come down before his court in Bynchburg was over, he, Thornhill, would send for him and let him know, and Bocock would come at once, which understanding was, however, not communicated to Johnson. No further communication took place between Thornhill and Bocock until the death of Johnson, at which time Bocock was at his own plantation, about three miles from Johnson’s.
    Bocock had jsome few days before come down to his plantation from Bynchburg, on his way to Buckingham court, where he was on Monday, the 8th day of July, and from which place he returned to his plantation on Tuesday, the 9th day of July, and when the death took place on th,e 10th July, he was sent for by Thornhill and went over to Johnson’s at once.
    On the night of the 17th June, after the codicil was finished, Washington Johnson, one of his colored natural children, approached his bedside and said to him, now, to a moral certainty, you have given Mr. Bocock everything, and have made no provision for us. He said, 1 ‘I am not dead yet. ’ ’
    It was proved by Cabell that while he was attorney for Johnson, from 1848 to I860, Johnson was a man of strong mind, hard in his disposition, even with his natural children, of inflexible will, and of a suspicious *disposition, and extremely bitter in his feelings towards his relations.
    All the subscribing witnesses knew Johnson well, but A gee and Pankey were neither intimate with him, and very seldom saw him. Thornhill had known him for forty years, but was not in the habit of visiting him till the codicil was made, and very seldom before that time went to his house.
    Some time during the war the professional relations began between Johnson and Bocock. Once during the war Johnson talked with James A. Wright, who was in the habit of transacting some of his business for him, about making a will and freeing his negroes, and talked of getting Bocock to write it for him. Wright told him that Bocock was speaker of the Confederate congress, and could do it as well or better than any other man.
    It was proved by Cabell that during his attorneyship, and by another witness that subsequently, Johnson spoke of his estate being probably involved in litigation after his death, and declared his purpose of leaving his executor strong-handed to defend it. A day or two after the codicil was made, Johnson was spoken to about making some provision for his servant Martha. He said when they were slaves, all they wanted was freedom; and when they got free they wanted a home, and now they wanted everything he had, and they shouldn’t have it. On the occasion of the conversation above referred to, between Albert and Johnson at Johnson’s bedside, Johnson said to Albert: “The stay-law and the bankrupt law are against my money. Before you were free it was nothing but freedom; then the state set you free, then you want money; now, you must work for money as I did. My estate is going to be sued; they are going to sue you and your children— *them in the cradle and them unborn. Oh God, I wish I could rise from the grave and hear the contention. I leave my money to Bocock; so that he can’t be bought. I leave it to him to defend you till the last dollar is spent. I might give you a bond, and you might hand it to a lawyer to collect and never receive a cent. I have been trying to collect my money and failed, and if Mr. “Bocock should do so and have some left, who would have a better right to. it than he who labored for it?’’ He said also that Bocock had been injured by the war, ■ and was a public man, and had been disfranchised, and he intended to help him.
    It was proved that the Circuit court of Bynchburg adjourned on the 29th June, 1867. The will bears date the 18th of Rebruary 1867, and in it he disposes almost exclusively of the land where he lived. Prom this he divided off eleven lots, which he gave to certain persons mentioned in them: and the remainder of the tract, which consisted of wood land, his executor was to hold for the benefit of those to whom he had given the lots of land; all of whom were persons of colour, and most of them were reputed to be his children. He appoints Thomas S. Bocock as the legal adviser of his executor, in all things touching the management of his estate, and he and the executor were to have full power to settle any difficulties arising among his devisees, about their respective interests under his will. And he appointed Albert Thornhill his executor.
    The codicil bears date the 17th of June 1867. After making some slight changes as to the wood land reserved in the will, and making some other devises of land in the county of Prince JSJdward, and of interest in two houses in Bynchburg, among some of the same ^persons mentioned in the will, he comes to the last clause which was the subject of contest in this case, and is as follows:
    “I have deposited my bonds and claims mostly in the hands of Thomas S. Bocock, in whom I have confidence, ’ with the understanding that I can draw on him for the money as it may be collected; and if I shall draw for any amount before the same shall be collected, he agrees to accept said order, to be paid whenever the funds may come into his hands to pay the same; provided the whole amount drawn for may not exceed the net amount which may come to his hands for use. Row it is my will and desire at my death he shall proceed to collect all sums due me as the laws of the land may permit—interest when interest can be collected, and principal when that may be done, - -and out of the net amount which may come into his hands, that he shall pay over to my executor whatever may be necessary for the payment of debts, also the commissions of said executor on collections made for my estate, and also all orders drawn on him by me in my lifetime, and accepted by him, as above stated; and any amount which may remain, after these payments, in his hands, shall never be claimed by my executor, or by any other person, by any authority from me; but the same shall remain his absolute property. ’ ’
    To this codicil was added a list of debts made out by him at the time, twenty-seven in number; being such as he remembered at the time,though not pretended to embrace all, or to be strictly accurate.
    The letter referred to in the statement of facts proved, bears date Eynchbtrrg, June 25, 1875, and is as follows:
    «Dear Sir:
    Our friend, Mr. Thornhill, informs me that you have expressed a wish to change the clause in the codicil to your will, which directs how your money shall be disposed of after your death. It was put down just as you directed, as you will remember, and after full explanation. Mr. Thornhill will read it to you again, so that you can bear it fully in mind. I wish to have it exactly to suit you. So far as I have any connection with it I wish it to be your will, and not that of any other person. Every is yours, and is altogether in your power. If it does not suit you as it stands you can change it in several modes. You can revoke the last codicil altogether, and make another if you choose, or you can make another codicil, altering the first so far as you wish to alter it; or leaving the will and codicil to stand as at present, you can draw an order or orders on me, payable after your death, in which you can direct that your money be given to whoever you wish. Just say who you wish to have it, and it shall be done accordingly. I send by Mr. Thornhill the form of a new codicil, and also the form of an order, such as I have indicated. He can have them, or either of them, changed to suit you. You have only to say what change you wish to make, and it shall be done. If I could leave here with propriety, I would go down immediately arid aid you so far as in my power; but the Circuit court is in session, and will remain in session for some days longer. As soon as my business is through I will be down.
    With best wishes, &c., &c.
    The copies referred to in the letter, and sent with it were the copies of an order on Bocock directing- that any net balance in his hands remaining after payment ‘«of debts and commissions of executor as aforesaid, be paid out and distributed among Johnson’s relations, as the same would be paid and distributed under the laws of Virginia regulating the distribution of the money and effects of deceased persons not disposed of by will.
    The form of the codicil was to the same effect.
    The cause came on to be finally heard on the 28th of May 1874, when the court made all the proceedings and evidence had on the trial of the issue a part of the record, and decreed in accordance with the ,verdict of the jury, the paper writing dated the 17th of June purporting to be a codicil to the will of John H. Johnson deceased, to be in all its parts the true last will of the said John H. Johnson deceased, and that the bill be dismissed with costs. And thereupon the plaintiffs applied to a judge of this court for an appeal; which was allowed.
    The cause was most elaborately argued in printed notes as well as orally by Guy & Gilliam, John Howard and Cosby, for the appellants, and Kean and Kirkpatrick & Blackford, for the appellees; but it is impossible to do justice to the argument in a brief note.
    
      
      Wills—Draftsman as Beneficiary.—In Cheatham v. Hatcher, 30 Gratt. 69, the court says, citing the principal case: “Again, it is said that Cheatham, the chief legatee, was the draftsman of the will. That circumstance does not invalidate the will. It simply imposes upon the court the duty of increased vigilance in seeing that the will was fairly executed,- and that it does in fact carry out the wishes of the testatrix with respect to her property.”
    
    
      
       Same—Onus Probandi.—Barton’s Ch. Fr. (2d Ed.1 page 608, foot-note 6, after citing the principal case, say’s: “The burden of proof of sanity is on the pro-1 pounders of the will, hut not so of absence of fraud or of undue influence. McMechan v. McMechan, 17 W. Va. 683, as reported in 41 Am. R. 682. The burden is on the proponnder to prove not only the due execution of the will but the testamentary capacity of the testator. Williams’ Ex’or v. Robinson, 42 Vt. 658, 1 Am. R. 359. See Martin v. Thayer, 37 W. Va. 38. A contrary view is taken in Am. & Eng. Enc. Law, vol. 25, p. 996, where many of the cases are collected, the text-writer adopting the more reasonable conclusion that the burden upon the propounder is only to prove the formal execution of the will. For what is regarded as undue influence, see Carter v. Carter. 82 Va. 624: Miller v. Rutledge et als., Id. 863. The whole subject of undue Influence and extent of testamentary capacity is well discussed and expounded in the case of Chappell et al. v. Trent et al., 90 Va. 849. See also, Tucker v. Sandidge, 85 Va. 546; Porter et al. v. Porter et al., 89 Va. 118. For extent of undue influence sufficient to vitiate a will, see Floyd v. Floyd, 3 Strob. 44, 49 Am. Dec, 626; note, p. 633. See also, Wise v. Fort, Va. Law Journal, 1883. p. 441.”
    
   Anderson, J.

In view of the importance

of this cause, the court has given to its consideration the most careful and earnest attention. And if we have erred in our conclusions, no fault is attributable to the learned counsel on either side, who- have conducted the discussion with scrupulous fidelity to their respective clients, and with great research and distinguished ability.

It is not surprising that the mere announcement, «that the decedent had given the bulk of his large estate to his attorney, who was the writer of his will, and a stranger to his blood, to the exclusion of his lawful kindred, should have excited comment in the country. And the fact, that the writer of the will was an eminent member of the profession, and had filled various posts of honor and high distinction in the service of his country, would naturally cause painful reflections in the public mind, and especially amongst the members of a profession which is so closely connected with the administration of justice, and who, in general, have been keenly sensitive, and justly so, to anything which might bring reproach or stain upon their fair and honorable escutcheon.

By the civil law, if a person wrote a will in his own favor, it was rendered void. I am not prepared to say that such a provision in our law would not be consonant with public policy, and a safeguard to public morals, especially when the writer of the will was the attorney of the testator. Hot that such a disposition of his estate might not fairly be made by a testator, and that he might not justly regard his attorney his best friend, and the most worthy object of his benefaction, and bequeath his property to him free from all restraint and undue influence; but considering the relation of confidence between the client and his attorney, and the capacity which a venal ‘‘and unscrupulous attorney would have to abuse that confidence, and considering the infirmity of human nature, which requires from the best' of men the daily prayer, ‘ ‘lead us not into temptation,” and the relation of the legal profession to the pure and faithful administration of the laws, and the importance of its occupying a position which raises it above suspicion, it is argued with much force, that an attorney should be absolutely '^incapable of taking a benefaction from his client by gift inter vivos or by will.

On the other hand it may be argued that by the law of England and America, the testator has the right, as he ought to have, to bestow his property on whom he will. He has the right to select the objects of his bounty. That his attorney may be the best friend' he has in the world and the most worthy object of his benefaction; and if he has capacity to make a will, and freely and of choice desires to bequeath his estate to him; he ought not to be deprived of that privilege. Whether this be a just conclusion as to what the law should be, or whether it is best that the rule of the civil law should prevail, I think the current of decisions shows that it has not been adopted to its full extent as a rule in England or America.

In England it has not, and is distinctly so declared. (1-Williams on Ex’ors, 4 Amer., from last London edition, p. 91.) And the writer adds: “The act is not absolutely void, even though the person making the will in his own favor is the agent or attorney of the testator;” but the suspicion thereby is, for obvious reasons, greatly increased.

In Billinghurst v. Vickers, 1 Phill. R. 187, it is held that the act is- not actually defeated, as it was by the civil law. To the same effect are Paske v. Ollatt, 2 Phill. R. 323; Barry v. Butlin, 1 Curteis R. 637; Baker v. Batt, 2 Moore P. C. C. 317; Hitchins v. Wood, Ibid 355, 436. The same is held in the American cases. A will by a client in favor of an attorney is not absolutely invalid. The existence of that fiduciary relation does not annul the act. Wilson v. Moran, 3 Bradf. R. 172. To the same effect is Crispell v. Dubois, 4 Barb. Sup. C. R. 393; Cramer v. Cruinbaugh, 3 Maryl. R. 491; Watterson v. Watterson, 1 Head’s (Tennessee) R. *1; Adair v. Adair, 30 Georgia R. 104; Nexsen v. Nexen, 3 N. York Court of Appeals decision 360; Goodacre & Taylor v. Smith, 1 Law R. Probate and Div. 359. In Coffin v. Coffin, 23 N. York R. 9, Comstock C. J. said: ‘ ‘It is not a rule, or a principle of the law of testaments, that the draftsman of a will cannot be an executor, or take a benefit under it.

The counsel for appellants rely on Meek & Thornton, ex’ors v. Perry & wife, 36 Miss. R. 256, and Garvin’s adm’r v. Williams & al., 44 Missouri R. 465, as maintaining the rule of the civil law. Though the reasoning of the judges may tend in that direction, the decision in neither case goes to that extent. They do not hold that the will is absolutely void, but only that the relation of confidence raises a prima facie presumption of undue influence, which, unless rebutted, the will cannot stand.

The Mississippi case turned upon an instruction given by the court of trial to the jury in the following words, to wit: “That the law watches with jealousy transactions between guardian and ward; and if the jury believe that Louisa McKinnie (the ward) made a will in favor of her guardian whilst the relation of g-uardian and ward subsisted, the circumstances must demonstrate full deliberation on the part of the ward, and abundant good faith on the part of the guardian, or they must find against the will. The appellate court held that there was no error in the instruction.

The Missouri case also turned upon an instruction, which reciting all the facts in the case, asked the court to declare, that ‘ ‘the presumption arising from such fact is, that the alleged will was procured by the undue influence of J. P. Williams; and that presumption can only be repelled by satisfactory proof that no undue influence was used to procure the same.”

*The appellate court held, that under the circumstances in which the will was made, it was presumptively invalid, and the burden of proving its validity rested upon those who sought to derive an advantage under it. The instruction, therefore, which was refused by the court should have been given. It is clear that in neither of the foregoing cases was it held, that on the ground of the relation of confidence between the testator and the legatee the will was absolutely void, but only presumptively so, which presumption it was competent for the propounder of the will to repel. And in this last case it will be observed that there was much in the conduct of Williams, besides the confidential relation, from which the presumption against the validity of the will might arise. But in these cases the doctrines enunciated are not entirely conformable to the rules which have been adopted and established by the current of English and American decisions.

These rules as laid down by Baron Parke in Barry v. Butlin, 1 Curt. Ecc. R. 637, are, first, “That the onus probandi lies in every case upon the party propounding a will; and he must satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable testator; ’ ’ and second, “that if a party writes or prepares a will under which he takes a benefit, that is a circumstance which ought generally to excite the suspicion of the court, and calls upon it to be vigilant and zealous in examining the evidence in support of the instrument; in favor of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased. ’ ’ These rules are approved by the court in Crispell v. Dubois, 4 Barb. Sup. C. R. 393; also m Cramer v. Cruinbaugh, 3 Maryl. R., supra.

*In Wilson v. Moran, 3 Bradf., supra, the court says: “True, it is held that where the legatee who stands in a confidential relation to the testator, himself draws the will, this circumstance calls for increased vigilance on the part of the court in ascertaining the validity of the will. But in such cases, the most that has been, or ought to be required, is satisfactory evidence that the testator was of sound mind, and clearly understood the contents of the will, and was at the time under no restraint. No case has gone so far as to overthrow a will duly executed when it was shown that the party executing it was of sound mind, and clearly understood its contents, though it was drawn by the person taking the estate.”

It seems to me that the rules and principles by which cases of this nature should be decided are clearly and correctly stated in the foregoing decisions, and they are sustained by the almost unbroken current of English and American authority. Let us now apply them to the case in hand.

In tlie first place, I cannot doubt, upon the evidence in this record, that John H. Johnson was capable of making a will on the 18th day of February, 1867, when this will was executed, and also when he executed the codicil on the 17th of June following. The three subscribing witnesses, who are regarded in law as placed around the testator that no fraud may be practiced on him in the execution of the will, and to ascertain and judge of his capacity, all of whom are represented to be men of intelligence and respectability, were not only of that opinion, (and the law makes their opinion evidence,) but facts are proved by them and others, which, in connection with the intrinsic evidence furnished by the instrument itself, excludes all doubt that the testator was of sound disposing mind.

*In the next place we will inquire, had he knowledge of the contents of the codicil when he signed it? Being capable of making a will, it is not probable that he would have signed it without knowing what it contained. But the proof is positive and direct. It is proved that the testator himself gave instructions to Mr. Bocock, ■which were written down by him and after-wards read over several times to the testator and approved by him. The codicil was then written, and Mr. Pankey and Mr. Agee, who together with Mr. Thornhill had attested the will, and who the testator desired should attest the codicil, were sent for, and one of them, Mr. Pankey, who had been a justice of the peace for a number of years, read it to him. The testator said he heard it and well understood it. That he had j heard it several times before, and it was written as he directed.

The proof is that “the codicil,” after it had been written out, had not been before read to the testator, although the note of instructions had. The fair inference from the testator’s remark, that he had heard it several times before, is, that there was no discrepancy between the note of instructions and the codicil. And Mr. Thornhill testifies that “all was read to Mr. Johnson in the notes,” and “all was in the notes as it is in the codicil.” These two things being established, first, that the testator was

capable, and secondly, that he had knowledge of the contents of the instrument, and the execution having been according to the requirements of law, ordinarily, further proof would be unnecessary to establish the will. ' But this case being of the class which calls upon the court to be vigilant and jealous in examining the evidence, and to be satisfied that the paper propounded does express the true will of the deceased, which satisfaction cannot be felt ^whilst suspicion rests upon it, we will further inquire, was the testator under restraint when he executed this codicil?

A valid testamentary disposition of property must be the voluntary act of a capable testator. In Wilson v. Moran, supra, the court said: “A will by a client in favor of an attorney is not absolutely invalid. The existence of that fiduciary relation does not annul the act; but still the circumstances call for unusual yigilance, to see that it was in consonance with the views and wishes of the testator. ’ ’ Baron Parke affirms in Barry v. Butlin, 1 Curt. R. 637, that all that can be truly said is, that if a person, whether attorney or not, prepares a will with a legacy to himself, it is at most a suspicious circumstance of more or less weight according to the facts of each particular case; in some, of no weight at all, varying according-to the circumstances; for instance, the quantum of the legacy, and the proportion it bears to the property disposed of, and numerous other contingencies; but in no case amounting to more than a circumstance of suspicion demanding the vigilant care and circumspection of the court in investigating the case, and calling upon it not to grant probate without full and entire satisfaction that the instrument did express the real intentions of the deceased.

The quantum of the legacy and the proportion it bears to the property disposed of, according to this authority, is unfavorable to this will. But it is still only a circumstance of suspicion, which calls for vigilant care and circumspection. The turning point is, does the instrument express the real intentions of the deceased? The same principle is sanctioned and acted on in Baker v. Bott, 2 Moore P. P. C. 317. And in the subsequent case of Durling v. Loveland, 2 Curt. R. *225, 227, Sir H. Jenner Fust, referring to these passages in the judgment of Baron Parke, said, he acceded to every one of the doctrines and principles there laid down, but was not aware that the prerogative court had ever acted on any other or different. And they are recited by Judge Lomax in his book on executors, without dissent.

No presumption can be raised against the will or codicil in this case, from the fact that a stranger is preferred to his lawful kindred, when the facts certified in the record are examined. The relation was one of hostility; and the testator had long before formed the fixed and inflexible purpose that his relations should have no part of his .estate; which purpose it does not appear that he ever abandoned to the day of his death, though he thought at one time of making a small legacy to each of two sisters. By the will which was written for him in 1859 by his attorney, Mr. William M. Cabell, he left them nothing.

The evidence also cleai-ly shows that he gives his illegitimate children all that he intended them to have. On whom then could he bestow the residuum of his estate? Mr. Cabell testifies that his feelings toward Thomas Bocock were very partial. And it is also in proof that he said he intended to help him as he had been injured by the war, and was a public man, and had' been disfranchised. Being unwilling- to do more for his illegitimate children, and not willing that his relations should have any part of his estate, who was there, that he would have been more inclined to make his residuary legatee than Thomas Bocock.

The provisions of the codicil were known by his children and relations, and by all who felt any interest. There was nothing clandestine in the transaction. No attempt was made to exclude any one from the testator’s ^person, or to conceal the dispositions he had made of his property. The will was not only ambulatory, revocable, or alterable, at the pleasure of the testator, from the 17th of June, when the codicil was executed, until the day of his death, the 10th of July, but the disposition in favor of Bocock could be changed simply by the testator giving orders on him. During this period the testator’s relations and illegitimate children might have free access to him. The woman who waited on him and nursed him, his reputed wife, as well as his natural children, had every opportunity to bring what influence they could to bear upon him to change his will as to Bocock. Some of his children and one or two of his sisters availed themselves of this opportunity to approach him and to persuade him to change his will. But in vain. He was inflexible. He would not even do more for Martha, his reputed wife, though advised to it by his executor. All the evidence represents him as a man of strong mind and inflexible will. His sisters succeeded in disturbing his mind by representing that he had given all his bonds and choses in action to Mr. Bocock absolutely; and he expressed a desire to have some ■ change made in that clause of his codicil. But the letter from Mr. Bocock satisfied him that it was all right, and that its provisions were just as he had directed and desired them to be. That letter represents the state of the case truthfully, and informs Mr. Johnson that he may revoke his codicil altogether, or may alter it either by executing a new codicil, or by giving orders on him, and actually sends him formulas, by which the testator can take every dollar from him and give it to whom he will. It is objected, that Mr. Bocock makes the order payable to the testator’s “relations,” knowing that he was averse utterly to giving- them anything. But he tells him in *his letter that Mr. Thornhill can make any' changes he may wish in those formulas. If Mr. Bocock inserted “relations” in the formulas, to intimate not that he should, but that he should not, make a disposition in favor of his relations, he does nothing to guard against his making a provision in favor of his illegitimate children. ■

It was also urged in argument, in this connection, that Mr. Bocock ought to have gone to see Mr. Johnson in order to aid him in the preparation of any papers he might wish to have prepared in relation to the disposition of his bonds and other charges on the money to be collected on them. If he kept away from Mr. Johnson to prevent him changing his codicil, or from drawing orders on him in favor of other parties, such conduct would deserve the severest censure and reprobation, and might be treated as a fraud upon those in whose favor the change was contemplated, though even such conduct could not effect a revocation of a will which had been duly executed, or defeat the probate thereof. Though the fact, if it were so, could not affect the issue involved in this suit, justice impels me to say that, in my opinion, such an inference cannot be fairly drawn from the facts appearing in this record. Mr. Bocock by his letter had plainly informed Mr. Johnson of all that was necessary to enable him to change the disposition of his bonds, &c., which he had made in his codicil, and informed him of his perfect right to make any change he thought proper, and to give the property to whomsoever he chose, and furnished him with the proper form of an order on him to effect'such change, which he informed him he would respect: Thus giving him all the information ho needed, and every facility to make the change which he could have afforded him if he had been personally ^present. It is not fair to presume that he had staid away to prevent him doing what he had already given him every facility for doing, especially when a better motive can be assigned, and with better reason for his conduct.

Mr. Bocock was aware that it was in the power of Mr. Johnson to change his will at pleasure as long as he lived, and retained testamentary capacity, and that the bequest to him was conditional, and that it was in the power of Mr. Johnson to render it valueless simply by giving orders on him, and that Mr. Johnson was aware of it. He knew also that the disposition which he had made in his favor was known to his illegitimate children, and he had reason to believe would be made public; and that the numerous persons who would feel that they were interested to defeat it, would have unrestrained access to Johnson, and would probably bring every influence they could against him. Yet it does not appear that he did anything to guard against these influences. He did not keep the disposition made in his favor concealed from Johnson’s family, which would have been the most effectual, nor did he against those influences speak a word to Mr. Johnson by way of caution, or to restrain him from giving orders on

him; but, on the contrary, told him that he would accept his orders payable when the money was collected, and which would he good after his death; and when he was informed by Mr. Thornhill that influences were brought to bear on the mind ■of Mr. Johnson to induce him to change this clause in his codicil, he wrote to him informing him that he had a perfect right to do so, and that his wishes should be carried out by him; and he furnished him with every facility he could to make any disposition he thought proper of the funds which were in his hands. In the conelusion of his letter *he says: “As soon as my business is through I will be down;” but he never went to Mr. Johnson’s house until after his death. He had a right to presume that after Mr. Johsnon received his communications, if he wanted him he would let him know. He had given him all the legal advice and assistance by letter that he could if he were present. He preferred not to engage in a contest for a bequest of Mr. Johnson’s property. He was willing to accept what he freely bequeathed him, but he was not willing to engage in a contest with the relations or with the illegitimate children for it. He chose therefore to surrender to them the whole field and to abide the result, without exposing himself to the imputation of going there to ■exert a personal influence over Mr. Johnson, to the prejudice of his blood relations and illegitimate children. It has been held that a person may by fair argument and persuasion induce one to make a will in his favor. Jarman on Wills p. 38-’9, and cases cited. And it is said by Mr. Perkins, in the 4th American edition of Jarman on Wills, to be the result of the cases, that “the influence to vitiate an act must amount to force and coercion, destroying free agency. It must not be the influence of affection and attachment, it must not be the mere desire for gratifying the wishes of another; for that would be a very strong ground in support of a testamentary act.” Jarman on Wills 40, 41. Whether this be true or not, there is not an item of evidence in the record to show that Mr. Bocock, by any sort of intimidation or persuasion, influenced the testator to give him a benefit under his will, or that he even intimated a wish that he would do so. It is a fair presumption from the evidence, that the first intimation that he had ever had that the '^testator intended to make a testamentary disposition in his favor, was whilst he was engaged in taking a note of his instructions. And the intimation seems to have taken him by surprise. The testimony of Albert and Washington, reputed sons of the testator, who say they were present, or in hearing, when the instructions were given, and when the codicil was executed, is positive and unequivocal, to the effect that the dispositions made in the codicil were dictated and suggestedby Johnson, and originated in his mind, and were written by Bocock according to his instructions, and fully corroborates the testimnony of Thornhill.

If there was any sort of influence exerted by Mr. Bocock, to induce Mr. Johnson to give him so large a part, or any part of his estate, it does not appear in this record. On the contrary, the conclusion from the evidence, it seems to me, is irresistible, that the codicil expresses the real intentions of the testator, which were the suggestions of his own mind, and that it is the result of his free and unrestrained volition.

With regard to the question raised as to the competency of Albert Thornhill to testify in the cause, we think there is no error in the ruling of the Circuit court. By express statute, he is not incompetent by reason of his being executor: and it does not appear that he had any such interest in the establishment of the codicil as would disqualify him as a subscribing witness. As to the ruling with regard to the competency of James H. G-ooding, the joint deed of his wife and himself releasing her interest in the estate of Johnson, if she had an interest in that estate, which would render her husband incompetent, it was thereby extinguished; and if she had not, no release was necessary to remove incompetency on that ground.

*But they were plaintiffs in the suit, and liable for costs. The rule which excludes a party to the record as a witness in the cause applies to all cases where the party has any interest at stake in the suit, although it be only a liability for costs, and excludes a prochein ami, &c. Murphy’s adm’or & al. v. Carter & al., 23 Gratt. 485. The deposition of the wife of a prochein ami cannot be read, as he is liable for costs. If one is incompetent to testify, the other is also. Chapter 172, g 21, 22, Code of 1873, rendering parties to civil suits competent to testify in their own behalf, by express terms does not apply to husband and wife. There is no error, therefore, we think, in the ruling of the Circuit court, in excluding the testimony of James H. Gooding. Upon the whole, I am of opinion that there is no error in the decree of the Circuit court, and that it should be affirmed.

The other judges concurred in the opinion of Anderson, J.

Decree affirmed.  