
    Atkins, Appellant, versus Sanger et al.
    
    in an attempt to set aside a will because the testatrix was not of sound mind, and nap been unduly practised upon, evidence was admitted of the declarations of one of the executors, who was also a legatee and one of the parties to the record, as to facts which occurred at the time of making the will.
    This was an appeal from a decree of the judge of probate, by which a certain instrument, made in 1821, was allowed as the last will and testament of Sarah Badger. In this instrument, the principal legacies were given to Sanger, Noyes anu Thayer, the appellees, and they were also named as executors Atkins, the appellant, was the executor and a legatee in a former will, made in 1819. The chief grounds of the appeal were, that the testatrix, at the time of making the will of 1821, was not of sound and disposing mind, and that she had been unduly practised upon. At the hearing, before Parker, Chief Justice, and Thacher and Putnam, Justices, the appellant offered to prove the declarations of Thayer, in respect to the circumstances attending the making of this will.
    
      Hubbard and Hoar, as counsel for the appellees,
    objected to the admission of such evidence. Legatees have not a joint interest; they are not like partners. The confession of one legatee, if admitted in evidence, may take away legacies from the others without their consent. However small the legacy may be, the same rule must be applied, and thus frauds may be practised. This question has already been determined in Phelps v. Hartwell, 1 Mass. Rep. 72. Sedgwick J. there says, that if the appellee who made the declaration had been solely interested, he should have been in favor of admitting the evidence, but as the other appellee was interested in the establishment of the will, it ought not to be admitted. The same question was raised in Miller v. Miller, 3 Serg. & Rawle, 267, but not decided.
    
      Webster and J. T. Austin, for the appellant.
    We wish to show, by the confession of a party to the record, what took place at the making of the will. We cannot call the parties themselves ; Sears v. Dillingham, 12 Mass. Rep. 358; and it follows that their admissions may be given in evidence. Bauerman v. Radenius, 7 D. & E. 663; The King v. Hardwick, 11 East, 578. The appellees have a common interest to establish this will, though they have not an equal interest; so neither have all partners an equal interest in a copartnership. The case in 1 Mass. Rep. 71 related to a declaration'of an opinion.
   The Chief Justice,

after a short consultation with his brethren, said the Court were inclined to admit evidence of the declarations of either of the executors as to facts which took place at the time of making the will. This decision does not interfere with the case cited of Phelps v. Hartwell. 
      
       On the issue of dcvisavit vet non, the declarations of one of the devisees, who is not a party to the record, are not evidence to invalidate a will. Lightnet v. Wike, 4 Serg. & R. 203; Bovard v. Wallace, 4 Serg. &. R. 499; Nussear v. Arnold, 13 Serg. & R. 323. But the declarations of a sole devisee would be evidence.
     