
    
      Catherine C. Freeman and Henrietta Freeman vs. Joseph Jennings, Ex’r of Henry F. Freeman.
    
    The Ordinary had admitted to probate, in solemn form, a last will and testament, and and an appeal was taken by the two distributees. One of the appellants assigned all her interest to a trustoe for the other, who was an infant; and, on motion, the Circuit Judge gave leave to strike her name from the record, with permission for the cause to proceed in the name of the infant alone, by guardian ad litem. At the trial, the party whose name had been stricken from the record was offered as a witness for the infant appellant, and objected to as incompetent, because liable for costs which had accrued whilo she was a party to the record. The objection was overruled, and she was examined : — On appeal, the opinion of the Circuit Judge on both points was sustained.
    A motion to strike from the rocord the name of a party is addressed to the sound discretion of the Court.
    An appeal from tho Ordinary’s decree admitting to probate, in solemn form, a last will and testament, may be prosecuted in the name of any party interested who is dissatisfied with the decree.
    If pending the appeal one of the appellants should release or assign his interest, and his name be stricken from the record, the other appellants may go on with the cause. Where a motion is made to strike a party’s name from the record, it may be required, as a condition, that the costs should be paid; but if no such condition be then imposed, and the party be afterwards offered as a witness, it cannot be made an objection to his competency that he was Hablo for costs which had accrued before ho ceased to be a party.
    
      Before Munro, J., at Edgefield, Spring Term, 1854.
    The report of his Honor, the presiding Judge, is as follows:
    “ This was a suggestion in the form of an appeal from the decree of the Ordinary of Edgefield district, admitting to probate the will of Henry F. Freeman, deceased. The will was executed on the 8th of June, 1851, and the testator departed this life on the 1st of August following. The will was admitted to probate, in common form, the 7th October, 1851, and the decree of the Ordinary admitting it to probate in solemn form, .bears date the 27th July, 1852.
    “ The testator left a widow and an infant daughter, born since the testator’s death, who appealed from the decree of the Ordinary, on the following grounds :
    “ 1. Because the will had not been executed with all the formalities prescribed by law.
    
      “ 2. Because the testator was under age at the time of executing said will.
    “ 3. Because undue influence had been practised in procuring the execution of said will.
    “4. Because at the time of the execution of said will, the testator was laboring under partial insanity, or an insane aversion to his wife.
    i( The appellant, Catherine C. Freeman, having executed a release of .all her interest in her deceased husband’s estate, to W. C. Moragne, Esq., in trust for her infant daughter, Henrietta Freeman, on the opening of the case, a motion was made to strike out'of thejrecord the name of Catherine C. Freeman, and to permit the cause to proceed in the name of the said infant Henrietta, by a guardian ad litem; which motion was granted.
    “ During the progress of the trial, the said Catherine C. Freeman was offered as a witness in behalf of the appellant. Her competency was objected to on the ground of her liability to the appellee — in the event the suit should be decided in his favor — for the costs that had accrued while she was a party to the record. This objection I also overruled, and she was permitted to testify.
    “ Neither the form of the will, or the competency of the testator, although under age, to dispose of his personal estate, was seriously contested.
    “ The remaining grounds, undue influence and partial insanity, or morbid delusion, were submitted to the jury with suitable instructions, who rendered a verdict declaring the will to be null and void.”
    The executor appealed, and now moved this Court for a new trial.
    
      Carroll, Bauskett, for appellant.
    
      Moragne, Spann, contra.
   The opinion of the Court was delivered by

Glover, J.

The last will and testament of Henry F. Freeman was admitted to probate, in solemn form of law, by the Ordinary of Edgefield district, and from his decree an appeal was taken by the widow and child of the testator to the Circuit Court of Law. A verdict was rendered by the jury, which found, that the paper propounded was not the last will and testament of Henry F. Freeman. From this verdict, the executor has appealed to this Court for a new trial, and also to reverse the order of the presiding Judge, permitting the name of Catherine C. Freeman to be struck from the record.

The grounds of appeal present three questions for consideration :

1. Was the order of the presiding Judge, granting leave to strike out the name of Catherine C. Freeman, authorized by law and according to the practice of this Court?

2. Was she a competent witness, after a release of all her interest in the testator’s estate and after her name was struck from the record, without the payment of the costs which had then accrued ?

4. Was there evidence to prove either the general or partial insanity of the testator, or the exercise of an undue influence over his mind ?

1. A motion to strike from the record the name of a party, is addressed to the sound discretion of the Court, and will not be granted if it shall be prejudicial to the rights of other parties (Hawkins vs. Lewis, 2 N. & McC. 141.) In Boyd vs. Boyd, (3 Hill, 341,) the motion was refused because progress had been made in the trial of the cause, and, if granted, it would have operated as a surprise on the defendant, who could not have been prepared to reply to evidence which was not anticipated. On application to the Ordinary to admit to probate, in solemn form, a last will and testament, he is required to cite all such persons as would have been entitled to distribution of the estates if the deceased had died intestate. (11 Stat. 39, sec. xi.) If any one of the parties so cited shall acquiesce in the Ordinary’s decree, or ■ shall assign his interest to the others, the suggestion may be filed and the appeal prosecuted in the name of such as have an interest and are dissatisfied with the decree: and if, at any time before the trial of the issues presented by the suggestion, one of the parties shall release or assign his interest and his name be stricken from the record, it will not operate a discountenance or abandonment of the appeal. The question before the Ordinary involves the validity of the will, without reference to the respective interests of the litigants, and an appeal from his judgment maybe prosecuted by any one or more of the parties cited, and such was the course of practice adopted in Means and Means, (5 Strob. 157.) A verdict rendered on issues suggested in an appeal from the Ordinary, concludes all who are interested as devisees or legatees.

2. It is objected that Catherine C. Freeman was an incompetent witness, because she was liable for costs which had accrued. A party to a suit cannot be a witness, on account of his interest in the event of the suit, and in the costs, unless his interest be removed, and the costs be paid. In Willings & Francis, and another vs Consequa, (Peters C. C. R. 301,) one of the plaintiffs assigned all his interest in the subject in controversy to his co-plaintiffs and paid the costs, and it was decided, that he was competent. Numerous cases may be found in the Pennsylvania Reports, sustaining this practice, (Steele vs. Phœnix Ins. Co., 3 Binn. 312; North & al. vs. Turner, 9 Sergt. & R. 244.)

The argument in support of this ground assumes, that Catherine C. Freeman was a party to the suit when she was offered as a witness; but she was not then a co-plaintiff. Her name had already been stricken from the record, and an objection to her competency then would equally apply to all persons not clothed with the character of parties to the suit. When her name was taken from the record, it may have been proper that terms should have been imposed. If an amendment be in matter of substance, or after the general issue is entered, or a special plea pleaded, the plaintiff must pay costs or give an imparlance, at the instance of the defendant. (1 Tid’s Pr. 707.) It does not appear from the report, that the payment of costs was required when the amendment was made ; but that the motion was made when Catherine C. Freeman was offered as a witness, and after she had ceased to be a party. The principle established by the cases cited in argument is limited in its application to those who are parties, and does not embrace this case.

The Court should be satisfied, that all the steps taken to restore the competency of persons interested are in good faith and intended to divest their interest, and are not collusive. The assignment in this case appears to have been made with a bona fide purpose, and a responsible guardian ad litem of the infant co-plaintiff has been appointed to prosecute the appeal.

3. Respecting the testamentary capacity of Henry F. Freeman, much evidence was offered which satisfied the jury that he did not, when he executed his last will and testament, possess a sound and disposing mind and memory; and this Court is not prepared to say that their verdict is not sustained by the evidence.

Motion dismissed.

O’Neall, Wardlaw, Withers, Whitner and MuNRo, JJ., concurred.

Motion dismissed.  