
    WESLEY M. ENLOE & AL. vs. UTE SHERRILL & AL.
    A petition was filed for the re-probate of a will on> the ground Unit the supposed testator was non compos mentis. A. and B. his wife, joined ia the petition, oho being one of the next of kin. Afterwards, A. (he husband, caused himself to be joined with the execulors in propounding the will, leaving his wife still one of the caveators. Held that, on the trial of the issue dcvisavU vel non, the declarations of A. were not admissible in evidence to prove tlie incapacity of the supposed testator.
    An issue to try the validity of a will is not au adversary suit — there aro strictly no parlies to it.
    "Where a will is propounded, if the executor decline to prove it, or if there is ground for believing that the executor will not faithfully perform his duty, the Court will permit any person, who is interested in supporting the will, to join with the executor in propounding it, or to propound it alone. But the party applying for such an order must shew that he is not a mere intruder, bat that he either has, or believes he has, an interest in establishing the will.
    When the declarations of any party to an issue devisavit vel non are admitted in evidence, it is because of the rule, that the declarations of anyone against his interest is legal testimony as against him.
    The cases of St. John\' Lodge v. Callender, 4 Ired, 343, and McCrainey v. Ciarle, No. Ca. T. R. 278, cited and approved.
    Appeal from the, rtuperkn- Court of Law of Haywood County, at the Fall Term, 1845, his Honor Judge Baiijw presiding.
    At the. Spring term, 1843, of the Court of Picas and Quarter Sessions of Haywood County, a paper writing', purporting to be the last will and testament of Abraham Enloe, deceased, was, by the executor therein named, brought forward and propounded to the Court for probate. It was admitted to probate in the common form. At the same term, some of the next of kin of Abraham Enloe filed a petition for re-probate, which was ordered by the Court. Among the petitioners were John Mingus aud his wife Mary, the latter being one of the children of the deceased, and entitled, if the paper was rejected as the last will and testament of Abraham Enloe, to a distributive share of his estate. Upon setting aside the probate first had, the Court ordered an issue to be made up, of devisa oil vel non, and the petitioners, including John Mingus and his wife Mary, 'were made caveators. After the case had been so pending for some time, John Mingus came into Court, and had himself made a party, as one of the propounders with the. executors, his wife still remaining a caveator. Upon the trial of the issue in the Superior Court, the defendants contended that I he paper writing was obtained from the deceased by the undue influence of his wife, and in order to show it, offered in evidence the declarations of John Mingus, who wrote the will, which declarations were made immediately after the death of A. Enloe. The evidence was objected on the part of the executors, but was received by the Court. A verdict having been rendered for the defendants, the plaintiffs appealed.
    
      (riiion, for the plaintiffs.
    
      Francis, for the defendants.
   Nash, J.

John Mingus and his wife were among the petitioners to set aside (he probate of the- will. When-the order is made, and the issue made up, they take their position on the record, as opponents of the will; shortly after, without any reason assigned, he is transferred from the opposing to the propound]ng side of the issue. For what purpose is this done ? No reason is assigned, but it lies too near the surface to be hidden. It became necessary to use his declarations in evidence, i.o defeat the will. While he continued a caveator, this could not be done, and the bungling device is resorted to by him, of tailing his place among those who were endeavoring to. establish the script. But why, if his testimony was so important, did ho not present himself as a witness in the ease, in behalf of the caveators ? They, doubtless, would have been willing. But it did not suit the purposes or views of the parties. It was much more convenient to take his declarations, than to subject him to a cross-examination upon oath, which might have shewn that his «pinion in the matter was worth nothing. 13y transposing his name, he was enabled to obtain the ben «lit of his own testimony, to subserve his own interest. He was a party so the issue in no other light, than as the husband of his wife.; as John Mingus, he had no concern with it. His wife was still a caveator. But the Court erred in permitting his declarations to be used at all. An issue to try the validity of a will is not an adversary suit; there arc strictly no parties to it. When the will is propounded by the executor, he represents all whose interest it is to establish the paper, and no one can he joined with him and against his will, except by order of the Court. If it is made to appear, by one who is interested, that there is danger that the executor will not faithfully perform his duty, as that he is interested to oppose the probate, the Court may and will associate such party in interest with the executor, but not otherwise. And should the executor, upon propounding the Will, decline to prove it, as he may do, or to qualify as executor, the Court may admit any one as a propo.under, who is interested in so doing, and who establishes bis interest by his affidavit. 1 Wil. on Eg. 126. Godol. Pr. 1st, ch.20, s. 2. The party applying, must show that he is not a mere intruder, but that he cither has, or believes he has, an interest in establishing the will. No one, therefore, ought to be permitted to propound a will for probate or join an executor, who is not, in good faith, interested in so doing. Nor could a case be imagined, in which the necessity of the rule is made more apparent, than in the present. By a manifest trick, Mr. Mingus places himself in a position, wherein his own declarations can be used to subserve his own interest, in palpable violation of one of the fundamental rules of evidence, and yet apparently under the sanction of the law itself.

Where a will is brought into Court, in obedience to its order, or in compliance with his duty, by an exccui or, it is in the possession of the Court; its jurisdiction is over the thing itself, and it cannot be withdrawn by any one, but remains among the records of the Court. If contested, it is the duty of the Court to cause an issue of devisavit vcl non to be submitted to a jury. In this issue, there are strictly no parties ; both sides are equally actors, in obedience to the order directing the issue. St John’s Lodge v. Callender, 4 Ired. 343. And when the declarations of any party to the issue are admitted as evidence, it is because of the rule, that the declarations of any one against his interest is legal testimony as against him. It has therefore been ruled in this State, that in an issue of devisavit vel non, when the parties are regularly constituted, their declarations are evidence against them. McCrainey’s Ex. v. Clark and wife, N. C. T. R. 278. But, in order to render these declarations evidence, they must appear to be made by a party interested in the matter, and against his interest. Here, Mingus, as far as appears to us, was interested in setting -aside the will. His wife, through whom alone he could appear in the cause, was a caveator, because, as. we presume, interested to sot it aside. Separated from her, he had not the shadow of an interest. He ought not to have beers permitted by the Court, in the first instance, to associate himself with the executor, as' a propounder. And when the issue was submitted to the jury, the presiding Judge ought to have ordered his name to be stricken out and restored, as it originally was, to the position of a contes-ten* of the will. It would be a reproach to the administration of justice, to suffer the law to be perverted from its due course by so flimsy a device. The transformation of John Mingus from an opponent into a friend of the will, took place in the County Court, and, vVhen the issue was presented for trial in the Superior Court, he was apparently in his regular and proper position on the docket. The Court, then, might well suppose the evidence of his declarations came within the rule of McCrainey's Ex. v. Clark. Should this attempt of Mr, Mingus succeed, it will be an easy thing, hereafter, for any person interested in defeating a will, to do so.

Per Curiam. Judgment reversed and a venire de novo ordered.  