Summary
In McRainy v. Clark, 4 N.C. 698, it was held that where the executors and devisees are regularly made parties plaintiffs to an issue of devisavit vel non, the declarations of some of them were to be (565) received.
Summary of this case from Ragland v. HuntingdonOpinion
(January Term, 1818.)
The declarations of a party to a suit are evidence against him to be left to a jury.
The case was stated and the opinion of the Court delivered by RUFFIN, J. McRainy made his will, whereby he devised his tract of land to some of the plaintiffs and appointed the others his executors, who now offer the will for probate, McRainy being since dead. The defendants Clark and wife, the latter of whom is one of the heirs at law and next of kin of McRainy, opposed the probate, whereupon this issue of devisavit vel non was made up; and the question turns upon the fact whether or not there was a revocation of this will. For the purpose of proving that there was, the defendants offered in evidence the declarations of one of the executors and some of the devisees who are parties to this issue. But the court refused to receive the evidence. They then proved that, after the making of the will, McRainy contracted to sell a tract of land (being part of the estates devised in 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 convey. And they insist that the contract was a revocation in law. The court instructed the jury otherwise, and they found that McRainy did devise, etc. A motion is made for a new trial upon the ground that the court erred in both of the above points.
Upon the latter it seems entirely clear that the court informed the jury correctly. What may be the effect of such a contract in equity upon the particular devise 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 his 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 these questions, now. The point in dispute is whether there be a revocation of the will at law; and that there is not, is proved beyond a doubt by many authorities. Ryder v. Wager, 2 P. Will., 332; Cotter v. Sawyer, ib., 23. Even if the lands had been actually (699) conveyed, the will would not have been thereby revoked, properly speaking, so as to prevent its probate; but the only effect would be an ademption of the devise of the particular lands conveyed. Upon the point of evidence, however, I think with the defendants. This issue is in the nature of a suit, and the executors and devises are regularly parties to it. Their declarations ought to be received in evidence against themselves. I 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 whatever 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 give it its due weight, according to the manner of obtaining the confession or the relative interests of him whose admissions are proved. I know of no solitary exception to this rule, and cannot imagine one. I think, therefore, that there must be a new trial.
NOTE. — See S. c., reported in 6 N.C. 317, under the name of Archibald McCraine's Heirs and Devisees v. Neil Clark and Catharine, his wife.
Cited: Ragland v. Huntingdon, 23 N.C. 564; Enloe v. Sherrill, 28 N.C. 215, 216; Linebarger v. Linebarger, 143 N.C. 236; Plemmons v. Murphey, 176 N.C. 675.
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