
    Murphy, by his next friend, Respondent, v. Murphy et al., Appellants.
    1. Section 38 of the act concerning wills (R. C. 1845, p. 1084,) renders the appointment of an executor void where he is also one of two attesting witnesses ; consequently he is a competent witness to prove the will.
    2. Where a minor sues by his next friend, the next friend is a competent witness in behalf of such minor plaintiff.
    3. Although an appointment of an executor would he rendered void by reason of the fact that such appointee is also one of two attesting witnesses, he may be appointed administrator with the will’ annexed.
    
      Appeal from Washington Circuit Court.
    
    This was a petition in behalf of John P. Murphy, by his-next friend Thomas C. Murphy, to establish the will of one Richard Murphy, which had been rejected by the county court. Upon the trial, the said Thomas C. Murphy, who had been appointed one of the executors of said will, and was also one of the two attesting witnesses, was admitted as a witness in behalf of the plaintiff to prove the execution of the will, and that the said R. Murphy was of sound and disposing mind.
    
      Berryman, for appellants.
    
      Frissell, for respondents.
   Scott, Judge,

delivered the opinion of the court.

Thomas C. Murphy was one of the two attesting witnesses to the will, and he was appointed executor. The 38th section of the act concerning wills, (R. C. 1845, p. 1084,) made this appointment void; consequently he was properly admitted as a witness to tbe execution of tbe will. As to tbe objection that be was a party to tbe proceeding, being tbe guardian ad litem of bis son John P. Murpby, wbo was a party to tbe suit, it is sufficient to observe that a guardian is no more a party to a suit, wbicb is conducted in tbe name of bis ward, than tbe attorney is a party wbo conducts a suit for an adult. He may be liable for the costs, but interest now does not disqualify a witness.

There is nothing in tbe idea that it should appear from tbe attestation of a witness to a will, that tbe testator was of sound and disposing mind. Tbe witness proves that fact when sworn to establish tbe will, but tbe statute does not require that he should state it in bis attestation. If tbe widow was dissatisfied with tbe will she should have renounced its provisions in tbe manner prescribed by law.

Tbe appointment of Tbos. C. Murpby as executor of tbe will being void, he being tbe subscribing witness to to it, on the establishment of tbe will he will not be entitled to act as executor. Tbe execution of tbe will will devolve on Catharine Murphy, tbe executrix. Should she renounce, there would, as we conceive, be no objection to tbe appointment of Thos. C. Murphy administrator with the will annexed. We do not pretend to say, however, that such a course would be obligatory on tbe probate court. They would be free to act as they thought best for tbe interest of the estate. (Murphy v. Murphy, 3 Kernan.)

Judge Ryland concurring,

tbe judgment will be affirmed;

Judge Leonard absent.  