
    
      Mary A. Dillard v. James Dillard.
    
    On a question of devisavit vel non, the Court excluded evidence of the admissions and declarations against their interest of the legatees under a tvill, who were equal in interest with the executor.
    The admissions of one who is not the sole party in interest, whether on the record or not, are not evidence on a question of devisavit vel non.
    
    
      Before Mr. Justice' Withers, at Laurens, (Extra Term,) July, 1847.
    The Presiding Judge. The question was, devisavit vel non. The Ordinary had decreed in favor of the will, and the plaiutiff appealed. The alleged testator was James Dillard, and the plaintiff was the daughter of a deceased son. The defendant was nominated executor in the paper propounded. The alleged will bore date the 6th Feb. 1836. The allegations on which, at the outset, the plaintiff relied, and which were presented in the pleadings, were — 1st, That James Dillard, deceased, was, at the date of the paper propounded, too weak of mind from the decay of faculties to execute a valid will; and 2d, That undue influence had been used upon him in relation to the will. The last charge was directed against the defendant, who was the son of the deceased.
    
      In the argument, the counsel for the plaintiff (who was appellant,) abandoned the first ground of complaint, except in so far as it might serve to give point and potency to such acts of the defendant, operating upon a person supposed to be enfeebled in mind, as he certainly was in body, as were relied upon to sustain the charge of undue influence.
    The testator lived about ten months after the date of his will, and the paper was in his possession during that time. The estate had been distributed by the executor among those entitled. I suppose, however, the appellant had not received her legacy of one hundred and fifty dollars. The Ordinary said the estate amounted to some thirty thousand dollars, but I did not ascertain whether the proceeds of the real estate were included in this sum.
    According to my memorandum of the provisions of the will, it directed all testator’s property, real and personal, to be sold on a credit of 12 months. After the payment of debts, the remainder of the money was to be disposed of as follows ; To George Dillard’s children, to wit, the appellant in this case, and her brother, each $150; to Mary Shand’s child, (another grandchild of the testator,) $150; the balance was to be equally divided between testator’s wife and the following children, to wit: John Dillard, Priscilla Garrett, Jane Burke, Samuel Dillard, Mary Garrett, Narcissa Ducket, Nancy E. Boyce, Thomas J. Dillard, James H. Dillard, Sarah E. Dalrymple, and Charge H. Dillard. The portion of John to be placed in the hands of á trustee, for his “ benefit and support,” liable for no debt of his, present or future, except a note of $84, held by John Boyce, (the trustee,) to be appropriated by the trustee for the “use and support” of John and his family for life; remainder tó be equally divided among his children and others who were named.
    The testator’s children were by two wives- — some of those who shared equally his bounty were of the half-blood, as was the defendant in this case.
    Testator was, at the time of his death, between 85 and 90 years old. It was said that the age of 90 had been placed bn his tomb-stone.
    The will was executed in due form, and according to the testimony of the only surviving attesting witness to the will, “the distributive part of the same (as he expressed it,) was read, before the witnesses signed.” This was explained to mean that portion of the will which disposed of the estate— and this witness then said the whole will was read to the testator at he time of its execution.
    In regard to the first allegation of the plaintiff in this case, the propositions established by the case of Tompkins v. Tompkins, (1 Bailey, 92,) were made known to the jury, and they were advised to enquire whether there was such intellectual weakness on the part of the testator as to.make evidence of instruction or reading over the will necessary and if so, then to enquire whether one branch of the requisition had not been complied with.
    But as there was no serious contest upon this point, their attention was particularly invited to the question of undue influence. It had been pressed with great earnestness, at much length and with much ability, by the counsel for the appellant, and as I really did think (though I did not so say to the jury,) that the case was feeble on this point as well aS the other, pains were taken to touch upon all the leading-positions of the argument. But the first thing done on approaching the question of undue influence was, to read to the jury from the Book, (Cheves,) so much of the facts of the case of Farr v. Thompson, as was necessary to explain what is said by the Court, on pages 46-7 of that book, on the subject of undue influence, which was also distinctly read to the jury, in the words of the judgment — and then they were cited to Shephard’s Touchstone, vol. 2, of the Law Library Edition, marginal pp. 405-6, where I think will, be found an excellent epitome of the law on the subject of undue influence, embracing, as it does, the text of Swinburne, with the criticisms, distinctions, and running commentary of Hilliard and Preston, added to the authority of Shephard. These authorities, the words of which were recited, were held up to the jury as the standards according to which they were to measure the whole testimony, and all the discussion. In the authority last referred to, most of the terms complained of as improperly used in the charge, will be found, but they will be found with a context, and this the jury also hea.rd. It is' quite certain that these authorities were before the Court and jury, that the aim was to make the whole.charge conformable to them, and I have every confidence that it was so.
    But that which I regarded, and 3?et regard, as the serious matter on the question of new trial, is to be found in the 4th ground of appeal, to \yit: “Because his Honor erred in excluding evidence of the admissions and declarations against their interest, of the legatees under the will, who were equal in interest with the executor.”
    In excluding this testimony, I reversed my first impression on the subject — and this after a witness had, in part at least, disclosed such a declaration. At that moment, the case of Gray’s Adm’rs v, Cottrell et al. 1 Hill, 38, was cited, and it appeared to me, that one of the grounds taken for the decision there, would exclude the testimony offered here. In that case, the administrators sought to recover a note under seal from .the defendants, who alleged unsoundness of a negro purchased from the plaintiffs, who was part of the consideration of the note, and they offered the declarations of a dis-tributee to establish the unsoundness. This testimony was. rejected, and one of the rules of law affirmed by the Appeal Court (per Johnson, J.) as sustaining the circuit decision, was, “there were other distributees of this estate, and probably creditors, over whose interests he (the witness whose declarations were offered,) had no control, and these declarations were calculated to affect their interests also; and on that ground, they were inadmissible.” It seemed obvious that the same mischief might result to others by admitting the testimony in this case; and besides, in the present case, it appeared that the legatees had received their legacies, and it might be, that those who had made declarations unfavorable to the validity of the will, might have squandered their portions, and having become wholly irresponsible, might, in point of fact, have no interests to be affected by these declarations when they were made.
    On the other hand, the case cited was placed on an additional ground, which, if sound, would be enough to support it, to wit: That the distributee might have been called as a witness, and therefore it might well be said that his declarations came under the rule, in its most stringent aspect, which excludes hearsay evidence.
    The question presented in the 4th ground of appeal, now under consideration, appears to me not to be ■ free from difficulty, and has occurred to me in some aspects not presented on the circuit, nor at present in the said ground. I think it worth while to place in this repoit what has appeared to me, in a limited range of reflection and enquiry, to the end that I may contribute what little aid may be so derived to a deliberate determination of it.
    1st. Were the legatees parties to this proceeding? If they were, and had a joint interest, then the general rule is, that the declarations of one would be evidence against ail; though they were not tendered, and are not now insisted on upon that ground. It did not appear on the trial whether they had been cited before the Ordinary. But he was required to “cite all such persons as would have been entitled to distribution of the estate,” in case of intestacy, “ by personal notice to such as aie in the State,” and notice to others in a newspaper, “ notifying them to appear at the time appointed for proving” the will. “Any person” aggrieved by the decision of the Ordinary, may appeal. Perhaps it is to be presumed that all in interest were cited, and any whose declarations were offered might have appealed. Does this make parties to the record all who have been cited, and would be distributees, when one of them appeals against a decree in favor of the executor, files his suggestion against him only, and posts his rule against him only? Such, I suppose, to have been the course m this case. As legatees, they would be excluded by the result of this investigation, and the whole real estate was directed tp be sold, and the proceeds divided as legacies.
    Perhaps the better opinion is, that they were not strictly-parties; their names were not on tbe record; they did not plead; were not called upon to plead. But if they were parties on the record, I observe it stated in the American Notes to Smith’s Leading Cases, vol. 2, p. 268, the declarations offered would not be admissible, for the reason assigned in the case from 1st Hill. It is there said, on the authority of Pennsylvania cases, “ the admissions of one who is not the sole party in interest, whether on the record or -not, are not evidence” on a question of devisavit vel non. The proposition, however, as stated in the 2d vol. of Greenleaf on Evidence, sec. 690, is as follows: “ It may here be added that where a devisee or legatee is party in a suit, touching the validity of a will, his declarations and admissions in disparagement of the will are competent to be given in evidence against him; but if he is . not party to the record, nor party in interest, it is otherwiseand for authorities, he cites Atkins v. Sauger, 1 Pick. 192; Phelps v. Hartwell, 1 Mass. 71; Bovard v. Wallace, 4 S. <fc R. 499; Nussear v. Arnold, 13 S. & R. 323-S-9. These cases are also quoted for the proposition above stated, from Smith’s Leading Cases, and the case from 1 Mass. 71, is there said to have decided “ that an opinion respecting the testator’s sanity, expressed by one of several interested, was held inadmissible;” while in Atkins v. Sauger, 1 Pick, 192, (a subsequent case,) the Court .“were inclined to admit” the declarations of one executor as to the acts done by the testator ; but it is not stated that the declarations were admitted, and the question of the competency of such declarations to affect others, was not before the Court. I have not the means to refer at present to these Massachusetts and Pennsylvania cases.
    I have said that the general rule would admit the declarations of one of several plaintiffs or defendants against the whole classj as competent evidence for their adversary; but there seems to be respectable authority, as we have just seen’, to except the case of devisdvit vel non from the rule; and the same reason which produces that exception, to wit, that there must not be a community of interest merely, but a joint interest, an identity of interest, has excepted other descriptions of cases, as for example, in ejectment, where several demises are laid; or in partition, where tenants in common unite: Jackson v. Sidney, 12 John. 185; Dan v. Brown, 4 Cow. 483. The idea oí joint interest or liability is kept up by the law in relation to actions by partners,- and against co-defendants in trespass. The partnership must be established by evidence aliunde in the one case, and the common purpose and joint action in the tort, in the other, before the declarations of one of several parties are admissible against the rest,
    2. Suppose that the legatees were not parties to the record, but were those really in interest, and represented, nominally, by the executor, could the declarations of any of them, unfavorable to the will, be admitted against the executor 1
    
    If they could not, provided they occupied the position of parties to the record, a fortiori, they could not be received in the case now suggested.
    I suggest that there will probably be found, from a critical examination of the class of cases in which it has been adjudged that admissions or declarations of one having the real interest, though not party to the record, are receivable against him who is nominal party in his behalf, the following idea as the substratum of the principle, to wit: he whose declarations are offered must have the whole interest, and have complete control of the subject matter of litigation,- or at least of the results of the verdict rendered in behalf of his representative.
    Among a multitude of cases to be found on this point, I would refer to a late one in the 46th vol. Eng. C. L. R. 261, May &f Cheesman v. Taylor. Though Lady Twysden was set forth in the declaration of plaintiffs as their cestui que trust, in a demise of certain premises made by them to defendant for a term, and that the same was made “ at the re-. quest and by the direction of Lady Twysden,” (who was described to be a party to the indenture,) and that she “ did demise, ratify and confirm ” the indenture; and though Lady Twysden, in writing, authorized the act of defendant, (displacing four-or five acres of hops,) which was the foundation of the plaintiff’s action for the breach of a covenant in the indenture, that authority of the cestui que trust was held to be inadmissible for the defendant, by Tindall, C. J. Colt-man, Maulé and Cresswell, though it had been admitted by Lord Denman at nisi prius, as affecting the question of damages, but not as a complete answer to the action. The reason was, that it did not appear (though the contrary did not,) that Lady T. was in fact the only party to be affected; there might be for her only a life estate,! and the interest in remainder might be in another, for whose benefit some, portion of the damages to be recovered should be laid out on the estate. Channell, Serjt. said, that none of the cases cited on the other side (and there were many,) held the declarations of a third party admissible, where it was not shown that such party was the sole party interested — and he was stopped by the Court. Among the cases cited was that of Rex v. Hardwick, 11 East, 578, which I had supposed was pretty strongly against the terms of the rule affirmed by Channell, and sustained by the Court, and which, perhaps, the appellant’s counsel in this case may think it worth while to consult. For ample dissertation on this point, I refer to the note of Mr. Wharton, at page 265, of vol. 2 Smith’s Leading Cases, and to Cowan & Hill’s note to Philips, vol. 2, p. 167, note 173.
    3. Could the legatee, one or more, whose declarations were offered, have been called as a witness, and compelled to give testimony ? It was so contended, on circuit, in behalf of the executor. As the legacies had been paid, and (as I suppose) the issue would have been conclusive upon all the legatees, each would have been liable to contribute, if the will had been overthrown, to the distributive share of the appellant. Can a witness be compelled to testify in aid of a party, whose success in the litigation will subject him to a civil liability? If on this occasion a legatee might, then his declarations were clearly inadmissible. This was certainly vexata questio in England, until Parliament settled the matter, obliging the witness to testify. Vide Hawl’s Law Journal, vol. 1, p. 223, where the conflicting opinions of the judges, upon the application of the House of Lords upon this point, will be seen. A considerable majority of the judges thought that by the common law a witness was bound to testify in the case supposed — 36 Geo. 3: ch. 37, settled the matter; but I learn that there is, by no means, uniformity of decision upon this subject in the several States ,of the Union. I do not know whether it has been decided in this State.
    4. If the witnqss would be allowed to refuse to answer in the case just stated, is it proper, nevertheless, that he should be called and put to his objection ? Lady Twysden, in the English case cited, was subpoened, and did not attend. We will all agree, I apprehend, that it is eminently desirable to subject testimony, so far as it is possible to accomplish it,- to the touch-stone of cross-examinationand it is not Jess material in the case before us than in any other description of civil causes — for it is obvious that there is something very suspicious in a legatee, who has accepted his legacy, imputing by loose declaration (it may be) oblique agency in procuring a will in which he is favored; and, perchance, if he be required to appear upon the stand, he may adhere willingly to the fortones of the- executor’s adversary, and give the executor the benefit of a cross-examination.
    I here close what I proposed to say. The object has been to offer a little aid to counsel and the Court, in the investigation of the only question that I consider material m this cause; about which I doubted much on the occasion of a hurried circuit decision — and with respect to which I am not now entirely satisfied. The jury found for the will.
    The plaintiff appealed.
    There was much testimony taken, which it is not deemed necessary to subjoin, as it relates chiefly to grounds of appeal which were afterwards abandoned. In the argument before the Court of Appeals, only the following ground was insisted on for a new trial, by the counsel for the plaintiff — viz:
    “Because his Honor erred in excluding evidence of the admissions and declarations against their interest, of the legatees under the will, who were equal in interest with the executor.”
    Waddy Thompson, for the motion,
    insisted that the declarations of one who is jointly interested are admissible against all concerned. — Rex v. The Inhabitants of Woburn, 10 East, 395; Rex v. The Inhabitants of Hardwick, 11 East, 579; 2 Smith’s Leading Cases, 267; 2 Greenleaf’s Ev. 219. Those of a party, represented by another, are .admissible. — Atkins v. iSauger, 1 Pick. 192. Those of one of many legatees are admissible. The party interested is not presumed to intend to injure his interests. — Koon v. Greenman, 7 Wend. 121. Those of one heir, when there were others, were admitted.— Osgood v. The Manhattan Company, 3 Cowen, 612.
   Withers, J.

delivered the opinion of the Court.

The only question which the counsel for the appellant has argued before this Court, is that embraced in the fouith ground of appeal, touching the admissibility of the testimony therein referred to; and that is the only question considered. It is quite unnecessary to multiply words upon a point so fully discussed in the Report from the Circuit: for the considerations therein contained, aided by the cases cited, have ■ led us to the conclusion that the Circuit Judge was right upon the matter in question, and the motion is therefore refused.

Richardson, J. O’Neall, J. Evans, J. Wardlaw, J. and Frost, J. concurred.

Motion dismissed.  