#### ELI C. KEERANS and others, Ex’rs, &c., of JANE BROWN, and others, v. DEMPSEY BROWN and others.

One of the subscribing witnesses to a will being asked on his cross-examination, if he had not, a short time before the execution of the will, expressed to the other subscribing witness doubts of the capacity of the testatrix to-make a will, and on that account hesitated to sign the will as a witness, and haying denied using any such expressions : Held, that evidence contradicting the witness in regard to such conversation, was admissible, not on the ground of itS' tending to prove capacity or incapacity in the testatrix, but for the purpose of discrediting the witness, by showing that he had made-different statements to his evidence on the trial, upon a matter pertinent to> the issue.

(Radford v. Rice, 2 Dev. & Bat. 39, cited and approved.)

Devisa-vit vel non, tried before. Tourgee, J., at the Spring; *44'Term, 1872, of the Superior Court of the county of Randolph.

On the trial below, the caveators offered evidence, which being objected to by the propounders of the will, was ruled •out by the Court. To this ruling of his Honor the caveators •excepted; and the jury finding the issues in favor of the -will, it was adjudged by the Court to be established; from which judgment the caveators appealed.

Other facts in the case presenting the point decided, are ■ fully stated in the opinion of the Court.

Ball & Keogh, and Gorrell, for appellants.

Dillard, Gilmer & Smith, and Scott, contra.

Reade, J.

The complaint states that “ the plaintiffs are ready to prove that the last will and testament of Jane Brown, deceased, was duly signed, sealed, published and declared by the said Jane Brown, on 13th September, 1866; and that a codicil to the same, ratifying and confirming the said last will and testament, and appointing an additional -executor, ■was duly signed, sealed, published and declared .by the said Jane Brown, on 4th January, 1871; and plaintiffs demand of caveators the ground of their opposition,” &c.

The defendants answer, among other things, that the alleged testatrix was incapable of making a will.

And the main issue was,

> “ 2. Was she mentally capable to do the act ?”

The plaintiffs introduced the subscribing witnesses to the willof 13th September, 1866, and they testified that she was ■.capable.

1. For the purpose of impeaching one of the subscribing witnesses, Rush, he was asked on the cross-examination if 'he had not, a week before he witnessed the will, expressed .bis doubt of the capacity of the testatrix to the other-sub*45scribing witness, Frazier, and hesitated to witness it on that", account ? He answered in the negative. Frazier was then called and asked, whether Rush had not told him so ? The question was objected to by the plaintiff and ruled out by the Court.

The question is, as to the competency of the question: It presents the common case of conflicting statements of the: same witness about the same matter, pertinent to the issue.. The question was clearly proper. Redford v. Rice, 2 Dev. & Bat. 39.

The argument at this bar was, that the issue was as to-capacity at the time of signing the will, 13th September* 1866, and not as to her capacity a week before. True, but to prove that she was incapable a week before might at least tend to prove that she was incapable at the time of" signing. But the object of the question was misconceived.. It was not to prove the want of capacity a week before, but. to discredit the witness, by showing that he had made statements as to her capacity a week before, .which he denied oiatrial. And that was pertinent to the issue; as incapacity a week before tended to prove incapacity at the time of signing the will. And his denial on the trial of what h& said about capacity shortly before the trial, tended to the-discredit of the witness.

2. It was further insisted here that the evidence was immaterial, inasmuch as it was not necessary to prove the formal execution of the will of 13th September, 1866, or the* capacity of the testatrix ; because the codicil of 4th January» 1871, ratified and confirmed' the will of 13th September» 1866. That may be true. It may be that if the plaintiffs-had proved the codicil as required by law, they need not have offered the subscribing witness to the first will, or proved the capacity of the testatrix at the time of its execution, or offered any other evidence as to the original will» except to identify it as- the paper referred to in the codicil.. *46But then it does not appear that they proved the codicil at .all, or that they offered any other evidence than the subscribing witnesses to the will of 13th September, 1866. But ,-suppose they did offer evidence of the execution of the codicil, it may be that the testimony as to her capacity at the execution of the will of 13th September, 1866, had its influence with the jury in passing upon the codicil.

We think there was error in rejecting the evidence.

Pee Cueiam.

Venire de novo.