#### M’Kinna v. Hayer and the ex’r of Samuel Pickens.

From Mecklenburg.

A. became the subscribing’ witness to an instrument executed by his father. On the tria!, the handwriting1 of A, who lived without the State, was proved. The Defendant then offered the deposition of A, taken after the death of his father, to prove that the instrument never was delivered; it appeared that the father of A. had made e will, and it was held that the deposition was admissible in evidence, until the Plaintiff, by the production of the will, shewed an interest ¿í\in A, the witness.

This was an action of covenant, brought on an instrument signed by the Defendant Hayer and by Pickens. On the trial below, before Daniel, Judge, the Plaintiff called on witnesses to prove the handwriting of William Pickens, subscribing witness to the instrument, who resided without the State. They proved not only the handwriting of. the wiu>ess, but also that of the obligors. The Defendant then offered to read the deposition of the said William Pickens, taken since the death of the obligor, Samuel Pickens, to prove that the instrument never was delivered. This testimony was objected to because William Pickens was the son of Samuel Pickens, the obli-gor. The will of Samuel Pickens was not introduced, and it did not appear ro the Court that William Pickens had any interest under the will, or that any part of the estate of Samuel Pickens was left undisposed of by the *423will, but it was proved that if there was no will, he was an heir and distributee of the said Samuel. The Defendants further contended, that they had an interest in the testimony of W. P. at the time the transaction took place, and any subsequent interest thrown on the witness by the act of Providence or the operation of law, should not deprive them of his testimony. The Court permitted the deposition to he read, and it appeared from it, that the instrument had never been delivered, hut was surreptitiously obtained by Plaintiff, and put in suit. The Jury found that-the instrument was not the act and deed of the Defendants. A new trial was moved for, on the ground that W. Pickens's deposition was improperly received : the motion was overruled, and from the judgment rendered Plaintiff appealed.

Wilson for Plaintiff.

The witness, William Pickens, being* a distributee, it was competent to prove Ids handwriting : this was done, and was all that was necessary on the part of the Plaintiff. To destroy the bond or co venant, the testimony of William Pickens was introduced by the Defendants, and admitted by the Court. As respects the non-production of the will of Samuel Pickens, to shew that the witness was a legatee : to require it of the Plaintiff was requiring that which it was the-Defendants’ business to do : proving the witness one of the next of kin and heir, placed the onus probandi of his want of interest on the Defendant. Does the mere circumstance of a person being sued as executor prove that the next of kin and heir at law of the deceased was disinherited i If so, then the witness was properly admitted j but if k lie possible that the next of kin may have had a legacy, or that he may be entitled to something by a* residuary clause (if any), in the will, or that nothing but the personalty was disposed of by the will, and that therefore the witness took lands by descent, or that the immediate Defendant was sued as executor de son lort, then I con *424ceive it a clear and indisputable principle, that this evi dence ought not to have been admitted. It appears to me that these principles are too obvious to require or admit of authority.'

Gaston, contra.

The enquiry is, is the witness interested in the event. Every witness is presumed to. be competenthis incompetency must be shewn. It does not necessarily follow that William Pickens was interested because he was the son of Samuel; It should be made appear, either that there was no will, or that if a will was made, the witness was a legatee or interested in the residuum. The Plaintiff was not bound to shew that there was no will, but .when we shew that there was one, the. Plaintiff should have shewn that the witness was not interested. A witness must derive a certain benefit from the determination of the cause, or he is not interested, and this must be shewn — (Carter v. Pierce, 1 Term Rep. 163.) — The witness received in this case for the Defendant, was the security for her administration.

In Fowler v. Welford, (1 Doug. 140,) an executor was received as a witness to shew testator’s sanity, on an issue deroisavit vet non ,* hence we infer that a witness should not be excluded because he is interested in the surplus. So here, because witness may he a residuary legatee, he should not be rejected. It should be shewn by Plaintiff that lie is a residuary legatee. The law-leans in favor of receiving their testimony, and the objection here should be discountenanced. The witness was one originally selected by both parties to testify, and from the necessity of the case be should be received —(King v. Ford, 3 Salk. 690 — East India Company v. Goslin, Bull. JV. P. 289.) But this witness should be regarded as one offered by Plaintiff, and his deposition as explanatory testimony to which Defendant was entitled. His handwriting is offered to the Jury to raise a presumption that he saw the deed delivered, and Do *425fendant should be permitted to produce th% witness himself, of his deposition, to rebut that presumption.

Hall, Judge.

If the father of the witness whose deposition is objected to, had died intestate, I think the deposition ought not to bo read, for an obvious reason, that the rights and property of the father, by law devolving on the son, he would thereby be interested in this suit, and of course would not he competent to give evidence ; hut it appears that the father made a will, in which, no doubt, he has disposed of all his property $ perhaps he may hav e given it, or part of it, to this very son, or may have given him nothing. By making a will we may conclude that nothing has fallen to hi in by operation of law, for if the father had been contented with the disposition which the law would have made of his property he would not have made a will. £ think as an interest in the son was not shewn by producing the will of the father, the Court were right in receiving the depositios?, of the son, and a new trial ought not to be granted.

Tavxo.R, Chief-Justice, concurred in this opinion,

Henderson, Judge,

dissentiente. — The deposition of 'William Pickens was offered in evidence by the Defendants, and objected to by the Plaintiff, and the facts shew that he is the son of Samuel Pickens, the testator of one of the Defendants, which testator was one of the obligors named in the bond sued on, to repel which objection, it was answered that Samuel Pickens left a will, as it appears by the proceedings in this case, for --- — one of the Defendants, is called in Court as his executor •, there was no other evidence that he made a will, and of course none of its contents, The objection to the reading of the deposition was overruled. The deposition was taken after the death of Samuel Pickens. 1 think the deposition was inadmissible, for the interest of *426the child in tlfc estate of his father is not divested, (by shewing that there is a will, without shewing its contents also.) How the laws of England may be on the subject, Í am unable to say, for no authority was cited on the pointj I have been unable to find any, but with deference to the opinion of my brethren, I am ’very clear that under our law, the deposition was inadmissible. In England, the making of a will is emphatically the appointment of executors, for by that appointment all the property passes to them, and no rise or trust arises to any one, unless they appear upon the face of the will, either by express bequests or legacies, or by construction, that is by shewing’ that it was not designed that the executors should take beneficially,' with our law it is directly the reverse. Executors are trustees for the next of kin, unless it is shewn that the next of kin are excluded $ it therefore appears to me that the witness being next of kin to the testator, it should have shown that he was excluded by the will, for unless the will disposes of all the property, he is interested j the reverse of the English law, which gives to the executor all the property but that which is taken from him by the will. I do not think that there is any weight in the argument, that the Plaintiff gave credit to the witness by proving his handwriting to the deed, as evidence of its execution. At the time he did that act, to-wit, attested the deed, ho was disinterested. The Plaintiff was willing to take his statement made at that time, but not since ho became interested. I therefore cannot concur in the opinion of the Court, but think that the rule for a new trial should be made absolute.