#### In re Will of SUSAN McKAY.

(Filed 29 March, 1922.)

1. Executors and Administrators — Wills—Devisavit Vel Non — Evidence— Admissions.

Admissions of the executor are generally incompetent against the devisees, upon the issue of devisavit vel non, especially when those sought to be introduced were made in the lifetime of the testator' and necessarily before the relationship as executor has existed, or before he was acting in a representative capacity.

2. Same — Joint Interests.

The interest of an executor in the will of the deceased upon the issue of devisavit vel non is distinctive from that of the devisees under the will who have a joint interest, among themselves, and his declarations against their interests will not bind them, especially when those sought to be introduced in evidence were made in the lifetime of the testator.

8. Evidence — Character—Civil Actions — Substantive Evidence — Wills— Devisavit Vel Non — Executors and Administrators.

Upon the trial of a civil action the evidence as to the character of the parties who have taken the witness stand in their own behalf may ordinarily be received .as affecting the credibility of their testimony, or may be corroborating and impeaching in its effect, but not as substantive evidence, and an instruction upon the trial of devisavit vel non that evidence as to the character of the witnesses, including the caveator, who had taken the witness stand, may be received as substantive evidence, is erroneous. The reason for the application of a different rule in actions for libel and slander, and in criminal actions, pointed out.

Appeal by propounders from Grammer, J., at July Term, 1921, of Lee.

Issue of devisavit vel non raised by a caveat to the will of Susan McKay. Alleged mental incapacity and undue influence are the grounds upon which the ¡«caveat is based.

The jury returned the following verdict: "Is the paper-writing propounded, and every part and clause thereof, the last will and testament of Susan E. McKay? Answer: No.’”

Judgment on the verdict, from which the propounders appealed.

Hoyle & Hoyle and Gavin & Jackson for propounders.

Baggett & Mordecai and A. A. F: Seawell for caveators.

Stacy, J.

There are two fatal errors, appearing on the record, which entitle the propounders to a new trial or to a venire de novo.

John. Yarborough, one of the caveators, was allowed to testify, over objection; to an alleged conversation which he had had with M. M. Draughan in regard to the mental capacity of the testatrix.. This con*227versation is alleged to baye taken place during tbe lifetime of tbe deceased, and was offered as an admission or declaration against interest— tbe said Draugban later baying qualified as executor of tbe will, tbougb not named as a beneficiary therein. Up to tbis time tbe executor, wbo was one of tbe propounders, bad not gone upon tbe witness stand; and, in fact, be did not testify at all. We tbink tbe evidence was incompetent, and that its reception was hurtful and prejudicial.

As a general rule, statements or admissions of an executor, or administrator, are not competent or admissible as against tbe heirs or devisees. Davis v. Gallagher, 124 N. Y., 487; Marshall v. Adams, 11 Ill., 37. Especially would tbis rule be applicable when tbe alleged declarations, as here, were made prior to tbe beginning of tbe executorship. Tbe executor could not, then, in a representative capacity, have been engaged in tbe performance of a duty, pertaining to tbe estate, so as to make bis declarations pertinent and admissible as constituting a part of tbe res gestee. Church v. Howard, 79 N. Y., 415. As against tbe beneficiaries under tbe will, tbis testimony would fall in tbe category of hearsay evidence. Furthermore, admissions are received on tbe principle that they are statements against tbe interest of tbe party making them; but, in tbe instant case, statements made by Draugban, during tbe lifetime of tbe testatrix, could not be binding as against those, claiming under tbe will. Jones v. Jones, 21 N. H., 219; Jones on Evidence, vol. 2, sec. 253. True, tbe personal representative may propoxind and defend tbe will in common with others, including tbe legatees; but, in law, bis interest is of a different character from theirs. Tbe mere fact that several persons may have a common interest, as contradistinguished from a joint interest, in a given subject-matter, does not ipso facto render their admissions competent against each other. Tbis is tbe modern rule, and it is approved by a number of decisions in tbis and other jurisdictions. Daugherty v. Taylor, 140 N. C., 446; Belding v. Archer, 131 N. C., 287; Dean v. Ross, 105 Cal., 227; Eakle v. Clarke, 30 Md., 322; Hyman v. Wheeler, 29 Fed., 347.

Again, with reference to tbe evidence of tbe good character of some of tbe witnesses, bis Honor charged tbe jury as follows: “There has been, gentlemen of tbe jury, evidence tending to show tbe good character of witnesses wbo have testified, and if I recall correctly, as to tbe caveators, some of them at least, and I instruct you that tbis is substantive evidence, and will be so regarded by you in your consideration and deliberation.” Propounders excepted.

Tbis charge was erroneous. Ordinarily, in civil actions, evidence of tbe character of parties and witnesses is admissible only as affecting tbe credibility of their testimony. Lumber Co. v. Atkinson, 162 N. C., 301, and cases there cited. Such evidence may be corroborative or impeach*228ing in its effect; but, as a general rule, it is not to be considered by tbe jury as substantive proof. Tbe rule may be otherwise in actions for libel and slander, seduction, and tbe like, where tbe character of one or more of the parties or principals is directly involved, but this is not one of those cases. For exceptions to tbe general rule, see Norris v. Stewart, 105 N. C., 455, and cases there cited.

In all criminal prosecutions, certainly those involving moral turpitude, the defendant may elect to put his character in issue, and thus produce evidence of his good reputation and standing in the community (S. v. Hice, 117 N. C., 782); but if this be not done, the State cannot offer evidence of his bad character unless and until he has been examined as a witness in his own behalf, and even then — the defendant not electing to put his character in issue — the impeaching testimony is permitted to affect only his credibility as a witness and not the question of his guilt or innocence. Marcom v. Adams, 122 N. C., 222; S. v. Traylor, 121 N. C., 674. Of course, in proper instances, in criminal cases, where the defendant chooses to put his character in issue, the pertinent evidence, pro and con, then -becomes substantive proof, and may be considered by the jury as such. S. v. Morse, 171 N. C., 777; S. v. Cloninger, 149 N. C., 567.

For the errors, as indicated, there must be another trial, and .it is so ordered.

New trial.