
    Thomas M. Peeples et al. vs. James Stevens and Barnet Sweat, executors.
    Where executors, who are also legatees, propound a will for probate, their declarations, as well after as before the execution of the will, may be giren in evidence by the next of kin.
    BEFORE WHITNER, J., AT COLLETON, SPRING TERM, 1853
    This was an appeal from the decision of the Ordinary, admitting to probate the following paper, propounded as the last will and testament of Elizabeth Matthews, deceased.
    “ South Carolina, l
    “ Colleton District. )
    “ I, Elizabeth Matthews, widow of Jacob Matthews, do give, devise and bequeath, the whole of my estate, real and personal, of every kind, character and description whatsoever, goods, chattels, moneys, unto Barnard Sweat and James Stevens, to be equally divided between them, for and during their natural lives; and after their deaths, each of their respective portions to such of their children as may be living at the time of their deaths; and that each, of them shall pay Mrs. Mary Stevens twenty-five dollars so long as she lives; and I nominate and appoint Barnard Sweat and James Stevens, executors, to this, my last will and testament.
    “ In witness whereof, I have hereunto set m’y hand and seal, this first day of January, Anno Domini one thousand eight hundred and fifty-one.
    “ Elizabeth >J< Matthews, [l. s.]
    
      “Signed, sealed, published, pronounced and declared by the testatrix, as and for her last will and testament, in our presence.
    “ Joseph J. Perry,
    “ R. S. BedoN,
    “ DáNIel Elud.
    “ Codicil. — Should my two brothers 'come, I leave each of them twenty dollars, to be paid by my executors.
    “Elizabeth i Matthews.
    “ Josiah J. PERRY,
    “R, S. BedoN,
    “ DaNiel Elud.”
    The grounds chiefly, relied upon by the next of kin were, that the will was procured by the executors by fraud and undue influence, and that ‘the testatrix was not of sound and disposing mind.
    Much testimony was given on both sides. In behalf of the next of kin, the declarations of the executors were offered in evidence. His Honor admitted such of them as were made anterior to the execution of the wdl, and excluded such as were made afterwards.
    The jury by their verdic sustained the will.
    The next of kin appealed, and now moved this Court for a new trial, on the grounds:
    1. Because his Honor erred in refusing to permit the appellants to offer in evidence the declarations made by the appellees, James Stevens and Barnet Sweat, subsequent to the execution of the alleged will of Elizabeth Matthews.
    2. Because his Honor, the presiding Judge, erred in admitting the testimony of John D. Edwards, Esq., in behalf of the appellees, who was one of the attorneys on record, actively engaged in sustaining the will up to the time his testimony was-offered, and who admitted that he had received a fee of one hundred and seventy-five dollars to establish the will.
    3. Because there was not sufficient evidence that in the execution of the will,.the forms of law were complied with.
    4. Because there was not sufficient evidence that the said Elizabeth Matthews ever gave any instructions for the preparation of the alleged will, or understood what was contained therein.
    5. Because the evidence made out a clear case of mental imbecility, and a total want of the animus testandi required by law.
    6. Because the evidence proved, that the alleged will was obtained from the said Elizabeth Matthews, by the appellees, through fraud and under influence.
    7. Because the verdict was, in other respects, contrary to law and the evidence.
    
      Henderson, (Jam, Pressly, for appellants.
    
      Petigrw, Perry, Buist, contra.
   The opinion of the Court was delivered by

O’Nbalí,, J.

The first ground of appeal was alone the subject of re-argument. The other grounds were directed against the verdict, as erroneous in fact. In themselves they would not have constituted a sufficient reason to justify us in sending the case back, although we are far, very far, from being satisfied with the verdict upon the facts of the case.

Looking, therefore, to the first ground of appeal, alone, I shall proceed, with the concurrence of the Judge below, to state the reasons why we think his ruling was erroneous. The case of Dillard vs. Dillard, 2 Strob. 89, was the^reason of the exclusion of the testimony offered. That case does not, when properly understood, at all conflict with the admissions of the declarations of one or both of the executors adverse to the will. In it, it will be seen that the declarations offered were those of a legatee who AYas not a party to the issue. That I think is such a material distinction as to make that case not authority in this. For it may be that a legatee, not a party, has no such joint interest Avith the other legatees, as of itself, to make his declarations evidence against them. In such a case, hg# have been sworn as a witness. The case of Gray vs. 1 Hill, 88, upon the authority.of which my brind decided Dillard vs. Dillard, is placed by Juoge, expressly upon the ground, that the distributee, w| tions Avere offered and rejected, Ayas not a pas competent to be sworn against his interest. It^ also says, that his declarations were inadmissible on%not ground, that there Avere other distributees and creditors over whose interests'he had no control. But the first was sufficient for the case, and the other was unnecessary. The case of Durant vs. Ashmore, 2 Rich. 184, is another illustration of the rule. There the declarations of the executors, plaintiffs in the issue, were received against the will, although they were merely, that “it tuas their opinion that the deceased had no will.” And, on appeal, it was held, that-the declarations were properly admitted. The judge delivering the opinion, said “ they were from the parties to the cause, and might be used by the adverse party.” This short sentence is just as much matter of authority as the most labored opinion. It conforms to the uniform rule, that whatever is said by a party to a cause, if it be at ■ all relevant to the issue, may be used by his adversary as testimony against him. The cases from the Georgia Reports, are full and clear authorities, in cases of the same kind as the present, ruling in conformity to what I have just stated. In Harvey vs. Anderson, 12 Geo. Rep. 75, Judge Warner states the question, “were the admissions of Anderson, 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.” In answer to this question, he says, “ 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 eases where the party has any interest in the suit, whether others are joint parties with him or not, and howsoever that interest may appear, and whatever may be its relative amount.”

In Williamson vs. Nabers, 14 Geo. Rep. 285, the same ruling was repeated. These cases are identical with this. There the declarations were those of the executor, having also an interest as legatee. So in this case, both these executors, propounders of this will, have interest to a large proportion of the estate under the will.

The very argument with which we have been assailed, that an executor, having an interest against a will, might, by his admissions, destroy it, is answered by Judge Warner, in 12 Geo. Rep. 75, by saying, that “no such state of facts is presented by this record.” We might repeat the same remark here, for the executors have all the interest which make men struggle to preserve a will. Whenever the extreme case supposed arises, it will be then time enough to decide how far such a state of things may go beyond the credit of the party making them.

The case, in the matter of Thomas Drayton's will, 4 McC. 46, was cited, to show that these appellees, who propound the will for probate, are not executors until probate. But that case did not so decide, it was in it held; that if an executor die before probate, his executor cannot prove the will, or take upon himself its execution. In that case, William Henry Drayton, the propounder of the will, and named executor, is called by the judge delivering the opinion, executor, as he really was by being named, though not having completed his right by perfecting the probate, it did not pass to his executor.

The rule is stated in Williams on Executors, 239. “ The probate, however, is merely operative as the authenticated evidence, and not at all as the foundation of the 'executor’s title, for he derives all his right from the will itself, and the property of the deceased vests in him from the moment of the testator’s death.” The cases of Taylor vs. Taylor, 1 Rich. 531, and Workman vs. Dominick, 3 Strob. 530, show that the person named as executor in the will is thereby, and from the death of the testator, the executor in fact and law. Otherwise it never would have been held, as it'was in Workman vs. Dominick, that Hair, the executor named in the will!, but who refused to qualify, and who did not present the will for probate, was an incompetent witness to prove its execution.

The appellees here may therefore- be legally regarded as executors of the paper propounded for probate, having under it a joint interest, and representing' all rights and interests of the testatrix and of her legatees. In such a case, I do not perceive how there can be any question as to 4he admissibility of the declarations of one or both of them against the will which they undertake to set up.

Independent, however, of their joint interest and their joint representation of all claiming under the will, the very fact of presenting together the same paper as a will, and contending together for its probate, is certainly plenary evidence of combination to obtain a common end, and in that point of view the declarations of one would be evidence against both.

The motion for a new trial is granted.

WhitNER and Munro, JJ., concurred.

WaRDíaw, J.

I concur in the result of this case. I do not feel the force of the observation, that the appellees here are executors, and therefore representatives of all the legatees. The very question of the case is, whether they are executors. In all testamentary causes like this, the tribunal which tries, no matter what the form of its organization, is in fact a Court of Probates, exercising ecclesiastical jurisdiction; the issue to be decided is whether the instrument propounded has been proved as a will, and upon that depends the question, whether there shall be a grant of probate, that is, a grant of letters testamentary to the executors nominated, if they be the'persons propounding the instrument, or grant of administration, cum testamento annexo, to the persons entitled thereto in default of executors. These appellees are joint applicants to the Court for the grant of its authority. The next of kin, who are the appellants, resist-the grant; if the contest has been properly conducted, the result, affecting the personalty only, will be conclusive upon all the world. Yet there are in this case (and more plainly there may be in other cases of this kind) persons not parties before the Court, who have interests that they would not willingly submit to the wishes of either executors or next of kin.

In the cases where executors nominated have been held incompetent to attest wills, the principle of the decision has been that persons, who, at the time of attestation, are subject to such bias as is supposed to proceed from an interest appearing on the face of the instrument attested, are not, within the per-view of the statutes concerning wills, credible witnesses to attest. The death of any such person, between the attestation and the death of the testator, would not give validity to his attestation; and as a nominated executor who died before the testator could not be said ever to have been executor, nor one whose right is contradicted' by the setting aside of the instrument under which he claimed, so should not one whose title is yet sub judice. It is said that there has been in this case grant of ,probate after proof in common form; but that is of no consequence, for upon the result of the trial of proof in solemn form, will depend the continuance of the character which the appellees have assumed, and have assumed unjustly, if it shall turn out that the' paper propounded is not the will of the testatrix.

I reserve my opinion as to the application to these testamentary causes of the general rules which govern the admissibility of declarations made by a party on the record. If I was required to form an opinion, I would endeavor to examine how far our Acts of Assembly, and decisions concerning the proof of wills, have made the persons nominated as executors of a paper propounded as a will, representatives in Court of all legatees mentioned therein: whether, if made representatives to any extent, the nominated executors are not trustees who would not be permitted to affect injuriously the rights they were appointed to' guard, any more than a nominal plaintiff could so affect equitable interest which a suit was brought to establish: whether these nominated executors could compromise a testamentary cause, withdraw a will from examination, or suppress it; and whether there might or might not be distinctions, founded upon sound principles, between their declarations made at different periods, and also between their declarations and those of other persons who, as distributees or next of kin, might also be parties on the record.

I agree, however, that the admissions of a party who cannot be required to testify, should, when offered by the opposite party, be heard concerning his own acts; and further, that confederacy having been shown, (as I think it was between these appellees,) the admissions of one confederate bind the others. For ought that appears to this Court, the declarations of Stevens, which were excluded, would have amounted to admissions of acts done by himself, or by himself and Sweat, from which fraud, undue influence, or other invalidating matter, would have appeared against the will.

WITHERS and Glover, JJ., concurred.

Motion granted.  