#### CYNTHIA KIRBY vs. HAWKINS KIRBY, et al.

Upon tlic trial of an issue of devisavit vél «on, an attesting witness is competent to prove the propounded paper, as a will of real estate, although he is named executor, and has not renounced. An acknowledgement made by the supposed testator in 1848, of the paper writing, dated in 1830, as his will, is competent eridenee to prove the execution thereof, as a will of personalty.

(The case of Ticker v. Tucker, 5 Ire. 161, cited and approved.)

This was an issue of devisavit vel non, upon a paper writing dated 27th February, 1830, purporting to be the last will of John Kirby, and to convey both real and personal estate, and attested by James Kirby, Nancy Stanly and Thomas Isbell, as subscribing witnesses.

Upon the trial, before Baily, Judge, at Caldwell, at Fall Term, 1852, the plaintiff introduced James Kirby and Nancy Stanly as subscribing witnesses, who testified to the execution of the paper writing by the deceased, and that they made their marks as witnesses in his presence ; and that Thomas Isbell wrote his name as a subscribing witness at the same time, in the presence of the deceased. The plaintiff then proposed to introduce as a witness Thomas Isbell, who is named as one of the executors in said paper writing, and this testimony was objected to by the defendants. The plaintiff insisted that he was a good witness as to the devise of realty ; but the witness not having renounced his trust *455as executor, his Honor rejected the evidence. The plaintiff then introduced one Abram Sudderth, and told him to look at the paper writing propounded, and also to look at another paper which purported to be the last will of the deceased, and bearing date 20th October, 1849. The witness stated that he had seen the first paper some fourteen years after its date ; that he was requested by the deceased to examine it, and tell him if it was a good will; that he told him he thought it was, and the deceased then said it was his will; that the deceased talked with him about it several times, and on 20th October, 1849, requested him to write the last mentioned paper, (a copy of which accompanies the case,) that his wife, Mrs. Sudderth, and one Theodore Sudderth, witnessed the same ; that he was requested by deceased to copy the old paper and make the same dispositions of tire property, real and personal, in the new one, except to add the names of negroes born after the date of the first paper ; and to substitute himself as one of the executors in the last paper ; that he wrote the pápel-as he was thus told, and after the death of the deceased, he found both papers among his valuable papers.

The defendants objected that the paper offered was not the last will of the deceased, and introduced several witnesses for the purpose of showing that one of the subscribing witnesses, James Kirby, was a man of bad moral character, and that he and the other witness, Nancy Stanly, had sworn falsely and corruptly upon the trial, and that the paper could not be proven by the testimony of Abram Sudderth, who heard the testator say, in 1844, that it was his will. The defendants called Mrs. Sudderth and Theodore Sudderth, who testified to the due execution of the paper dated in October, 1849, as his last will and testament. And the defendants further objected that the paper propounded could not be proven by witnesses who only made a mark or cross — tiiat they must subscribe their names, which meant rn'ite their names.

His Honor charged the jury that the paper writing was offered as a will of personal property, as well as a devise of land ; that the law now required that every will made since the Act of 1840-41, whether of personal'or real estate, should be attested by two witnesses ; that a will of personalty must be executed with the same formalities as are required in the execution of wills of real estate ; *456that if they believed the witnesses James Kirby and Nancy Stanly, although they only made their mark, they should find that the paper writing was the last will of John Kirby, but if they did not believe either, they should find against it; and if they believed one of them and not the other, they should find the paper to be a will as to the personal, but not as to the real estate ; that it was competent for the plaintiff to show by one witness that it was the will of the deceased as to personal property, whether he was a subscribing witness or not, but if they did not believe either James Kirby or Nancy Stanly, then the declaration made by the deceased to Abram Sudderth in 1844 would be insufficient. And his Honor was of opinion that the last paper might be admitted to probate ; that is, if the husband renounced as executor, and released all his interest in the will, his wife and Theodore Sudderth, if believed, would be competent to prove the will both as to personalty and realty. But his Honor thought, and so charged, that as the wills were the same in (he disposition of the property, and no change except as to one executor, that the last will did not of itself in law revoke the first.

The jury found for the defendants, and there was a rule for a new trial on account of the rejection of proper testimony and for misdirection ; which rule having been discharged and judgment rendered on the verdict, the plaintiff appealed t.o the Supreme Court.

Bynum, Guión, T. R. Caldioell and Mitchell, for the plaintiff.

Avery and Gaither, for the defendants.

Battle, J.

The case of Tucker v. Tucker, 5 Ire. Rep. 161, decides that the executor to a will which contains devises of real' estate, as well as bequests of personalty, may, if he has no interest in ihe devise of the real estate, attest the paper writing as a subscribing witness, and may prove it as a will of realty. As between the devisee and heir he can have no interest in the event of the issue of devisavit vel non, when the scrip is propounded as a will of lands ; and he is competent to testify upon the trial of such issue, though he may not have renounced his executorship. The witness, Thomas Isbell, was, then, competent for the pur*457pose, for which he was offered, of proving the paper writing of 1830 as a will of realty, and the Court, erred in rejecting him as such.

We think the Court erred also in instructing the jury that the testimony of Abram Sudderth was insufficient to prove that paper writing as a will of personalty. It is true that the delarations of the testator, made to him in 1849, did not amount to a republication of the will at that time ; but it certainly was pertinent, and if believed, strong testimony to show that the testator had made and published it as his testament at the time it bore date. Our conclusion then is, that the plaintiff is entitled to have another trial of the issue which was found against her.

This conclusion renders it unnecessary for us to notice the questions relating to the paper writing alleged to have been executed by the testator as his will in the year 1849. Those questions are not very explicitly stated in the bill of exceptions, and we are not sure that we understand them. Indeed it is suggested that a mistake was inadvertently committed, in stating that his Honor “thought, and so charged, that as the wills were the same in the disposition of the property, and no change except as to one executor, the last will did not of itself in law revoke the first.” This, however, is not now a matter of much consequence, as upon the next trial the last paper will no doubt be again offered, and its legal operation and effect upon the one now in contest be properly explained and declared by the Court.

PeR Curiam. Judgment reversed, and a venire de novo ordered.