Opinion
July Term, 1818.
From Cumberland.
1. On the trial of an issue devisavit vel non the declarations of executors or devisees named in the will are evidence against them, if they be parties of record to the suit or issue.
2. A contract for the sale of land, contained in a devise previously made, which contract is not executed by reason of the death of the owner or devisor, before the day appointed, does not operate as a revocation of the devise.
ARCHIBALD MCCRAINE made his will and devised a tract to some of the plaintiffs, and appointed the others his executors, who offered the will for probate. Neil Clarke and wife (the latter of whom is one of the heirs at law and next of kin of McCraine) opposed the probate, and an issue of devisavit vel non was made up. Upon the trial of this issue, the defendants offered in evidence the declarations of one of the executors and some of the devisees, who were parties to the issue; and the court refused to receive the evidence. They then proved that after the making of the will McCraine contracted to sell a tract of land, part of the real estates devised in and by the will, for a price agreed upon, and was to convey on a particular day; but he died before the day arrived and did not (318) convey, and they insisted that this contract was, in law, a revocation of the will. The court instructed the jury otherwise, and they found that McCraine did devise, etc. A motion was made for a new trial upon the ground that the court had erred in both of the above points.
Upon the last point, it is clear that the court informed the jury correctly. What may be the effect of such a contract in equity, upon the particular devisee of the land sold, is another question. The devisee may or may not be a trustee for the purchaser, according to circumstances; and the price of the land may or may not be a part of the testator's personal estate for the benefit of his residuary legatee or next of kin, also according to circumstances; but we have nothing to do with either of those questions now. The point in dispute is, whether there be a revocation of the will at law; and that there is not, is proved by many authorities. Ryder v. Wager, 2 P. Wms., 332; Cotton v. Sayer, ibid., 623. Even if the lands had been actually conveyed, the will would not have been thereby revoked, properly speaking, so as to prevent its probate; the only effect would be an ademption of the devise of the particular lands conveyed.
Upon the point of evidence, however, the Court are of opinion the judge erred in refusing to admit the declarations of the executors and devisees. The issue of devisavit vel non is in the nature of a suit, and the executors and devisees are regularly parties to it. Their declarations ought to be received in evidence against themselves. We cannot see a legal ground to reject them. We cannot in a court of law look to the interests of third persons not before us; we cannot here know the executor as a trustee. All we can know is that he is before us as a party to the suit. The rule is universal, that whatsoever a party says or does shall be evidence against him, to be left to the jury. It is competent evidence; the jury can and will (319) give it its weight, according to the manner of obtaining the confession, or the relative interest of him whose admissions are proved. A solitary exception to this rule cannot well be imagined. The rule for a new trial must therefore be made absolute.