#### *Coalter’s Ex’or & als. v. Bryan & Wife & als.

May, 1844,

Richmond.

(Absent Brooke and Stanard, J.*)

1. Wills—-Contest—Function of Suit.†—upon abillfiled to contest the validity of a will which has been regularly admitted to probat, the function of the suit is exhausted when that question is decided: and if the will is declared invalid and null, it is not competent for the court to proceed in that cause, to make any further decree.‡

*242. Same—Same—Parties—Executor.—A person, acting-as executor, is not to be made a party in bis own right, to a bill filed to contest the validity of the will under which he is acting.

3. Same—Same—Trial at Bar of Chancery Court.—It is competent for the circuit superior court of law and chancery, in which a suit.to contest the validity of a will which has been regularly admitted to prohat is pending, to direct the issue *devisavit vel non*prescribed by the statute, to be tried at its own bar, on the chancery side of the court.

4. Same—Same—Feigned Pleadings Unnecessary.—In such case, it is sufficient if the issue is made up in the words of the statute and feigned pleadings are unnecessary. ■

5. Same—Issue of Devisavit Vel Non Plaintiff and Defendant.§—In the issue *devisavit vel non,*the party sustaining the will is the plaintiff, and entitled to the opening and conclusion of the case before the jury; and the party contesting the will is the defendant; *and this, though contestant may propose to admit on the record, a *prima facie*case in favour of the will.

*6.*Same—Same—Same—Rights of Parties Claiming underand against Will,—when a party has interests under and against a will, he may be authorized by the court to choose whether he will be plaintiff or defendant in the issue.

7. Same—Same—Witnesses—Executor.—An executor claiming no interest as devisee or legatee under the will, and not having acted in such a way as to subject him toa decree for costs, is a competent witness between parties claiming the estate he represents; though he is a party defendant in the suit; though he has settled his accounts shewing large balances in his hands; and though he is entitled to commissions upon his receipts and disbursements.

8. Same—Same—Same,—Upon directing the issue *devisavit vel non,*the court should, if moved so to do by the party desiring his testimony, direct the the executor, if a competent witness, to be received and examined before the jury upon the trial of the issue.

9. Same—Same—Evidence—Deposition before Probat Court.—Quiere. whether the testimony of a witness examined to sustain the will, taken down in writing before the court of probat, is to be read upon the trial of the issue as a part of the sentence of the court.

10. Same—Parties—Emancipated Slaves.—Inasuit^tO; contest the validity of a will admitted to probat, it is not proper that slaves emancipated by the will should be made parties defendants.

In May 1833, John Randolph of Roanoke died, unmarried and childless; leaving- a very large estate, both real and personal. His slaves numbered nearly or quite four hundred. At the time of his death, his heirs and next of kin were John St. George Randolph, a lunatic, the son of Richard Randolph, his brother of the whole blood, Henry St. George Tucker and Nathaniel Beverley Tucker, brothers of the half blood by his mother, and Elizabeth Tucker Bryan, wife of John Randolph Bryan, and St. George Tucker Coalter, the children of Frances Bland Coalter, a sister of the half blood by his mother.

, After the death, of, John. Randolph, it was ascertained that he had left several wills. One, in the possession of Dr. John Brockenbrough, written in 1819, of which it is not necessary to say any thing here. Another without date, though written in 1821, with four codicils dated ^respectively on the 5th December 1821, the 31st. of January 1826, the 6th of May 1828, and the 26th of August 1831. And yet another will, dated the 1st of January 1832. -Of these, the wills of ’21 and ’32, and the codicils of ’21, ’26 and ’31, are in his own handwriting. The contents of .these-papers seem to be necessary to the understanding of the questions decided in this cause, and they are therefore given at length.

The will of 1821, and the codicil of the 5th December of that year.

“In the name of God. Amen !

“I John Randolph of Roanoke, do ordain this my last will and testament, hereby revoking-all other wills whatsoever.

“1. I give and bequeathe all my slaves their freedom, heartily regretting that I have ever been the owner of one.

“2. I give to my ex’or a sum not exceeding eight thousand dollars, or so much thereof as may be necessary to transport and settle said slaves to and in some other state or territory of the U. S, giving to all above the age of forty, not less than ten acres of land each.

“To my old and faithful servants Essex and his wife Hetty who I trust may be suffered to remain in the state, I give and bequeath , three-andi a half-., .barrel's, of corn, two hundred weight of pork, a pair of strong shoes, a suit of clothes and a blanket each, to be paid them annually, also an annual hat to Essex, and ten pounds of coffee and twenty of brown sugar.

“To my woman servant Nancy the like allowance as to her mother. To Juba (alias Jupiter) the same; to Queen the same; to Johnny my body servant the same, during their respective lives.

“I confirm to my brother Beverley the slaves I gave him and for which I have a reconveyance.

*“I bequeathe to John Randolph Clay four hundred dollars annually to complete his education, until he shall arrive at the age of twenty-four years, earnestly-exhorting him never to eat the bread of idleness or dependence..

“I bequeathe to my name sake John Ran*25dolph Bryan my gold watch chain and seals & the choice of my horses. I bequeathe to his brother Thomas the choice of two of *my*horses.

“To William Leigh of Halifax, I bequeathe to him and his heirs forever, all the land on which I live, lying between the Owen’s ferry road & Carringtons, Cookes, Lipscomb’s and Morton’s lines. Also the books, plate, linen, household and kitchen furniture, liquors, stock, tools & every thing as it now stands, hereby appointing him my sole executor. And I do desire that he may not be required to give security or to make an inventory of any. thing here, that is at my mansion house or the middle quarter.

“(Cut out in the original.) B Dudley all the interest I have under the will of Mrs. Martha Corran.

"My interest under the will of Mrs. Judith Randolph I desire my executor to sell if he shall see fit, but not otherwise.

‘ ‘The land above the Owen’s ferry road the lower quarter, and the land I bought of the Reads to be sold at my said executors discretion, and whatever m (cut out in the original) y debts I give and bequeath to Francis Scott Key & the rev. Wm. Meade to be disposed of towards bettering the condition of my manumitted slaves.

“I have not included my mother’s descendants in my will because her husband besides the whole profits of my late father’s estate during the minority of my brother and myself has contrived to get to himself the slaves given by my grandfather Bland as her marriage portion when my father married her, which slaves were ^inventoried at my father’s death as part of his estate & were as much his as any that he had. One half of them now scattered from Maryland to Mississippi were entitled to freedom at my brother Richard’s death, as the other would have been at mine.

“Witness my hand and seal

The name (cut out in the original)

“[Seal.]

‘ ‘In presence of

“Richard Randolph Jun’r.”

“Codicil to this my will made the 5th day of December 1821. “I revoke-the bequest to T. B. Dudley & bequeath the same to my executor, to whom also I give in fee simple all my lots and houses in Farmville and every other species of property whatever that I die possessed of—saving the aforesaid specifications in my \yill.

(“The name cut out of the original) “Amelia County.

“The reason of the above revocation I have communicated to Wm. J. Barks-dale esq.”

The codicil of 1826.

“In the name of God, Amen! I John Randolph of Roanoke being of sound mind and memory, but of infirm health do ordain this codicil to my last will and testament, now in the possession of Wm. Lea esquire of Halifax county, Virginia, executor thereof, which said appointment I do hereby ' confirm, with all the bequests made to him therein, and bequests to or for the benefit of all, each and every of my slaves, whether by name or otherwise, and all bequests to him and them, which may be contained in any codicil to my last will. I make the same provision for my body servant John that I made in my said will for his father Essex, and the same provision for the said John’s wife Betsy, that I made for Hetty, the wife of Essex aforesaid, and similar ^provision for my man servant Juba, and his wife Celia, and the same for mulatto Nancy at the Lower Quarter, Archer’s wife. And I humbly request the General Assembly (the onl)r request that I ever prefered to them) to let the above named and such other of my old and faithful slaves as desire it, to remain in Virginia, recommending them each and all to the care of my said ex’or, who I know is too wise, just and humane, to send them to Liberia, or any other place in Africa or the West Indies.

“I revoke all and every bequest made in my said will, or in any former codicil thereto (except as aforesaid to my executor William Lea and my slaves, whether by name or otherwise) of every description whatsoever, whether of my own proper estate, or in expectancy or reversion from the Bland and Bizarre estate, or from any other contingency or source whatsoever. These reversions or remainders, or executors devisees, or whatsoever the law chooses to call them, I bequeath to my said executor as a fund to be used at his discretion, for the benefit of my slaves aforesaid the surplus if any to be his own.

“I also give and bequeath to the said William Leigh my executor the land that I bought of Pleasant Lipscomb’s estate, to him and his heirs forever.

“I also give and bequeath to my said executor and his heirs forever, the lot of fifty-three acres of land lying at the deep gut on Staunton river in Halifax county that I bought of William Sims Daniel & I request my said executor not to sell or lease the same, but to work it in three shifts, and to enable him so to do I give and bequeath to him the lot of one hundred and seventy-five acres of larid in Halifax which I.al&o bought of William Sims Daniel to have and to hold during his natural life & at his decease to that one of his children to whom he shall bequeath the aforesaid lot of fifty-three acres at the deep gut.

*“I give and bequeath to my friend Thomas H. Benton all that part of the tract of land that I bought of Jonathan Read’s heirs that lies on the southeastern side of little Roanoke containing about six hundred acres, as a mark of my regard to one whose friendship towards me was not expressed merely in words. I also give him my large pistols made by Woydon & Burton.

“To my friend Dr. John Brockenbrough I leave all my plate made b3r Rundle Bridge & Rundle, viz: 1 tea pot, one coffee pot, 1 sugar dish and tongs, two tureens, 4 sauce dishes. All the rest and residue of my *26plate, furniture of every sort, plantation utensils &c. I give to my said executor Wm. Leigh, and all my books, maps, charts, pictures, prints, &c. ■ except three folio manuscript volumes, bound in' parchment, which I bequeath .to the master and fellows (and their successors) of Trinity College Cambridge, old England; the first college of the first university in the world.

“To my friend William J. Barksdale of Haw Branch esquire, I bequeath my new english saddle and bridle: my silver spurs, my new english boots and shoes two pair each; my gold watch made by Baiwese, with the chain and seals, except the oldest seal with the Randolph arms and motto nil admirari, which I leave to R. Kidder Randolph of Rhode Island.

“I also leave to the said W. J. Barksdale the choice of any of my mares or fillies.

“I leave to Edmund Irby of Nottoway the next choice of my mares or fillies, and any one of my horses or colts to be selected by himself; also my double barrel gun.

“To Peyton Randolph of Buck river Prince Edward I leave my small'cockney gun by Mortimer.

“All the rest and residue of my estate, real or personal I leave 'to my executor Wm. Leigh hereby directing that no inventory or appraisement be made of my estate, and that no security shall be required of my said executor for the faithful discharge of the trust reposed *in him. His own character being the best security, and where that is wanting all other is unavailing.

“In witness whereof, I have hereunto set my hand and affixed my seal, (the following interlineations and expunging being first made; in the second paragraph the word “Essex” interlined, in the third paragraph the word “former” interlined, and the word “or” expunged: and in the 7th .paragraph the words “& tongs” interlined) this thirtj'-first day of January one thousand eight hundred and twenty-six (the whole of this codicil being written in my own hand).

“John Randolph of Roanoke [Seal.]

In presence of “M. Alexander,

“Nath. Macon.

“Memorandum.—The folio volumes of MS. bound in parchment containing the records &c of the old London company.”

The Codicil of 1828.

“Being in great extremity but in my perfect senses, I write this codicil to my will in the possession of my friend Wm. Leigh of Halifax esquire, to declare that wiU is my sole last will and testament, and that if any other be found of subsequent date, whether will or codicil I do hereby revoke the same. Witness my hand and seal. “John Randolph of Roanoke [Seal.]”

“May 6 1828.

“Witness

‘ ‘Edmund Morgan,

“Jo. M. Daniel,

“Robert Carrington.

“N. B. When I was about to embark for Europe in 1822, I did write a codicil on board the steamboat that *was carrying me to the packet ship Amity, which codicil by my direction Mr. Leigh destroyed.

“Since writing the above it has occurred ■to me that the will referred to as being in Mr. Leigh’s possession makes no disposition of the land that I purchased of Walter Coles and Letty his wife, also of the land bought of Daniel, consisting of two small tracts in Halifax; also of the land purchased of Pleasant Lipscom’s heirs. Now this writing witnesseth that I give and bequeath the whole of the above recited lands purchased since the date of my will aforesaid, to William Leigh esquire, my faithful friend who has given me aid and comfort not with words only but by deeds.

“I also give and bequeath to him and his heirs forever, not each and every one of the before mentioned tracts of land, but all the property of every description and kind whatsoever that I *may*have acquired since the date of that will aforesaid.

“Witness my hand and seal, this same sixth day of May 1828.

“John Randolph of Roanoke [Seal.] “Edmund Morgan,

“Jo. M. Daniel,

‘ ‘Robt. Carrington.

“In the will above recited, I give to my said ex’or Wm. Leigh the refusal of the land above Owen’s (now Clark’s) ferry road, at a price that I then thought very moderate, but which a change in the times has rendered too high to answer my friendly intentions towards my said executor in giving him that refusal. I do therefore, so far, but so far only, modify my said will, as to reduce that price 50 per cent, in other words one half, at which he may take all the land above the ferry road that I inherited from my father, all that I bought of the late John Daniel deceased, and of Tom Beaseley, Charles Beaseley and others of that. name and family, this last being *the land that Gabriel Beaseley used to have in possession, and whereon Beverley Tucker lived, and which I hold by deed from him and his wife of record in Charlotte county court. Witness my hand & seal day and year aforesaid.

“John Randolph of Roanoke [Seal.]

“(the words “but so far only,” & the word “from” in the preceding page first interlined.)

“Witness

“Edmund Morgan,

“Jo. M. Daniel,

“Robt. Carrington.

“As lawyers and courts of law are extremely addicted to making wills for dead men, which they never made when living, it is my will and desire that no person who shall set aside or attempt to set aside the will above referred to, shall ever inhert, possess or enjoy any part of my estate real or personal.

“John Randolph of Roanoke [Seal.]

“Teste

“Robt. Carrington,

“Edmund Morgan,

“Jo. M. Daniel.”

*27Codicil of 1831.

“On the eve of embarking for the U. S. considering my very feeble health, to say nothing of the dangers of the seas, I add this codicil to my last will and testament, and the codicils thereto, affirming them all, except so far as they may be inconsistent with the following disposition of my estate.

“1. It is my will and desire that my dear niece Elizabeth Tucker Bryan, shall have my lower quarter with the lands purchased of Coles & wife, & of Allen Gilliam’s estate, with the mill, and I do hereby bequeath the same to her and her heirs forever.

*“2. To m}r brother Henry St. G. Tucker, I give and bequeath all my Bushy Forrest estate, on both sides of little Roanoke, bought of the Reads & all my interest in the estate of Mrs. Martha Corran, and my lots and houses in Farmville.

“3. I have upwards of two thousand pounds sterling in the hands of Baring Brothers & Co. of London, & upwards of one thousand pounds like money in the hands of Gowan & Marx; this money I leave to my ex’or Wm. Leigh as a fund for carrj ing into execution my will respecting my slaves. And in addition to the provision which I have made for my faithful servant John, sometimes called John White, I charge my whole estate with an annuity to him during his life of fifty dollars ; and as the only favor that I ever asked of any government, I do entreat the assembly of Virginia to permit the said John and his family to remain in Virginia, and I do earnestly recommend him and them to my ex’or aforesaid, and to my dear brother and niece aforesaid.

“4. My plate and library. I leave to my dear niece E. T. Bryan.

“Witness my hand in Warwick street, Charing cross London, this twenty-ninth day of August one thousand eight hundred and thirty-one, to which I have also appended my seal.

“John Randolph of Roanoke [L. S.]

(Indorsement on the envelope) “J. R. of R.

“In case of accident to be sent to the Ü. S.”

The will of January 1st, 1832.

“In the name of God Amen, I John Randolph of Roanoke, in the county of Charlotte, & Commonwealth of Virginia, do ordain & appoint this my last will and testament, hereby revoking alt other wills & testaments & codicils whatsoever, in manner and form following, *that is to say: On this first day of January one thousand eight hundred and thirty-two, to which I have set my hand and affixed my seal, binding my heirs & assigns forever.

“I give and bequeathe all my estate real and personal, in possession or action, reversion or remainder, to John C. Bryan only son of John Randolph Bryan, and Elizabeth Coalter his wife, daughter of my dear sister Fanny, for and during the life of the said John C. Brjran; with remainder to his eldest son in fee simple; to him and his heirs forever: and in defect of such issue, then to the son of Henry St. George Tucker called John Randolph after me; for and during his natural life; with remainder to his eldest son; and in defect of any such issue, then to Tudor Tucker brother of the aforesaid Randolph Tucker, for and during his natural life; with remainder to his eldest son—

“And I do hereby appoint my friends Wm. Leigh of Halifax, & my brother Henry St. George Tucker president of the court of appeals, executors of this my last will and testament; requiring them to sell all the slaves, & other personal or perishable property ; *&*vest the proceeds in bank stock of the bank of the United States: & in default of there being no such bank, (which may God grant for the safety of our liberties,) in the English three percent, consols: & in case of there being no such stocks, (which also may God also grant for the salvation of old England,) then in the United States three per cent, stock; or in defect of such stock, in mortgages on land in England.

1 ‘ From the sale of my perishable property I except my library, books, maps, charts and engravings included, my pictures, plate, household linen, and the furniture of my bed chamber in the old house; and all the furniture in the new house, wines, together with such other articles as my said ex’ors may deem proper to keep, for the benefit of the heir—And my will and desire is that my *said execu— may select from among my slaves, a number not exceeding one hundred, for the use of the heir; the remainder to be sold. I also desire that my Bushy forest tract of land may be sold, and made chargeable with such debts & legacies as hereafter I may see fit to give, when I shall have more leisure to make my will: this being made in consequence of having cancelled a former will this night in presence of Wm. Leigh aforesaid, the sole executor under that will, and joint executor under this will which I make to guard against the possibility of dying intestate—

“I have in the bank of Virginia, upwards of 20,000 dollars; of which sum I desire payment to be made for the land purchased by me the day before yesterday, of Elisha E. Hundlej', and I bequeath the remainder to be equally divided between my said executors Wm. Leigh, and H. S. G. Tucker esquires: and I farther charge my Bushy forest estate with a farther legacy to John Randolph Leigh youngest son of Wm. Leigh aforesaid, of five thousand dollars.

“And it is my Will and desire that no inventory be taken of my estate, except of slaves, and horses, and that no security be given by or required of mjr said executors ; having full faith in their honour: neither shall they be held to account to any court or person whatsoever, for their discharge of this trust so confided by me in them—

“To Dr. John Brockenbrough, I leave all my french plate now in Richmond at J. P. Taylor’s, also my chariot & harness & the *28horses called John Ball, and Jonathan, alias John W.

“To John Wickham esquire, my best of friends, without making any professions of friendship for me; & the best & wisest man I ever knew except Mr. Macon; I bequeath my mare Flora, & my stallion Gascoigne, together with two old fashioned double handled silver cups, and two tankards unengraved—-the cups are here, *and the tankards or canns in Richmond ; & I desire that he will have his arms engraved upon them; and at the bottom these words,1 “from" J; Ri of Roanoke to John Wickham esquire, a token of the respect and gratitude which he never-ceased to feel for unparallelled kindness, courtesy arid services.

“To Nathaniel Macon, I give and bequeathe my oldest high silver candlesticks, my silver punch ladle with whalebone handle—a pair of. silver canns with handles and my crest engraved thereon—my hard metal dishes that have my crest and J. R. in old English letters engraved thereon; also the plates with the same engraving; the choice of four of my best young mares and geldings, & the gold watch by Roskell that was Tudor’s, with the gold chain: and may every blessing attend him, the best and purest & wisest man that I ever knew —To my brother Henry Tucker my gold watch by Barwise—The chronometer by Arnold & knives & forks &c. from Rodgers to go to the heir—To Wm. Eeigh all duplicates of my books, & my brood mares last chance, & Amy. To H. Tucker young Whalebone & young never Tire, also Topaz & Janus & Camilla & Marcella.

“John Randolph of Roanoke [ ]”

At the July term of. the general court for the year 1834 John Coalter, as the next friend of John Coalter Bryan, presented to that court for probat, the will of January 1st, 1832, which was opposed by William Meade as the trustee for the slaves under the will of 1821, and by Frederick Hobson as the committee of John St. George Randolph, on the ground of the insanity of the testator at the time of making the will. During the progress of this trial, William Leigh, the executor named in the will of 1821, and a devisee and legatee to a, large amount under that will, and' the codicils thereto, having released his interest, was examined *as a witness by the contestant Meade, and his testimony being reduced to writing, was made a part of the record of the cause.

The general court admitted the will to probat; but on appeal to the court of appeals, that judgment was reversed, and the will of 1832 was declared to be invalid and null.

After this decision of the court of appeals, William Meade presented for probat to the general court at its July term 1836, the will of 1821, and the four codicils herein before given; when Frederick Hobson, as the committee of John St. George Randolph, made himself a .party defendant, and contested the validity of all of these testamentary papers; and Henry St. George Tucker, and John R. Bryan and wife also made themselves parties defendants, and opposed the admission to probat of the will of 1821, and the three first codicils, but sustained the probat of the codicil of 1831, as an independent testamentary paper. The ground on which these papers were opposed, was twofold. First, the insanity of the testator at the time of their execution ; and secondly, that the will of 1821 had been cancelled.

On this trial, by consent of .the parties, the testimony taken on the motion -to admit to probat the will of 1832, was used, instead of a re-examination of the witnesses; and William Leigh’s evidence was a part of that testimony.

The general court was satisfied that the testator was sane when he executed the testamentary papers then offered for probat, and that he was insane when he cancelled the will of 1821; that act of cancellation having been done on the same night, and within a very few hours of the time, when he wrote the will of January 1st, 1832. That court accordingly gave a judgment admitting the will of 1821, and the four codicils thereto, to probat, which judgment upon appeal to the court of appeals was affirmed: and thereupon Leigh, the executor *named in .this will, qualified as such in the general court in December 1837.

Since the qualification of judge Leigh as executor of John Randolph, he has twice settled his administration accounts before a commissioner of the court in which he qualified, and by these settlements there appears now in his hands ready for distribution, assets to a very large amount.

In 1840, St. George T. Coalter having died previously, leaving a widow and five infant children, Corbin Braxton as his executor, and as the next friend of his infant children, and the widow filed their bill in the circuit superior court of law and chancery for the county of James City and City of Williamsburg, in which, after stating the facts of the admission to probat of the will of 1821, and the four codicils thereto, and the qualification of Leigh as executor, and that he had taken possession of the estate of John Randolph, charged in general terms, that these papers were not the will of the said John Randolph ; and that Leigh had no rightful authority to take possession of the estate. They pray that John Randolph Bryan and his wife Elizabeth Tucker, Henry St. George Tucker, in his own right, and as committee of John-St. George Randolph, Nathaniel Beverley Tucker, William Leigh as executor of John Randolph, and in his own right, and William Meade and Francis Scott Key, as devisees for the benefit of the slaves, should be made parties to the suit, and that they answer the bill on oath: that an issue may be made up and tried to test the validity of these testamentary papers, and that they may be declared invalid. That Leigh and-all others who have possessed themselves *29of the estate, may be decreed to account for and surrender it: and for general relief.

Leigh, Bryan and wife, Meade and Key, and Nathaniel B. Tucker answered the bill. Leigh in his answer, insisted that the will and codicils admitted to probat, *were the true last will and testament of John Randolph deceased; and admits that he has qualified as executor under the appointment contained in said will, and has taken possession of the estate. He objects to the trial of the cause, before the court in which the suit is brought, as well from the inconvenience to the parties supporting the will, as because no real defendant in the cause resided within the jurisdiction of the court; Nathaniel Beverley Tucker, the only resident therein, being identified in interest with the plaintiffs, and active in carrying on the suit. He alleges that he has no pecuniary interest in the cause, having released all interest in his testator’s estate, given to him by the will and codicils thereto. He objects, that Henry St. George Tucker is not the legally and duly appointed committee of John St. George Randolph. He objects, that the plaintiffs have not stated the grounds on which they rely to shew that the will and codicils admitted to probat, are not the true last will of John Randolph: and he objects that neither Henry St. George Tucker in his own right, or as committee of John St. George Randolph, or - Nathaniel Beverley Tucker are properly made defendants in this cause; they having the same interest with the plaintiffs.

Nathaniel Beverley Tucker in his answer admits that his interest is the same with that of the plaintiffs.

After the filing of the above mentioned answers, the cause was removed to the circuit superior court of law and chancery for the town of Petersburg; when to avoid the objection taken to the appointment of Herfry St. George Tucker, as the committee of John St. George Randolph, the plaintiffs amended their bill, and made said Randolph a party defendant; when Henry L. Brooke was appointed his guardian ad litem to defend him in this suit; and thereupon filed an answer for him. And it having been agreed between the parties, that Nathaniel Beverley Tucker should become a plaintiff *in the cause, the original plaintiffs, and said Tucker filed another amended bill, in which they say, that it having been objected that the grounds on which they intend to rest the charge made in the bill, that the said testamentary papers are not the true last will and testament of John Randolph deceased, are not stated therein; although they by no means admit that their said bill is defective because of such omission; yet to obviate all objections on that account, they will proceed to state them. They then charge: 1st. That John Randolph never executed the testamentary papers which had been admitted to probat, as and for his last will and testament. 2d. If he did so execute them, he was insane at the time. 3d. That he had cancelled them in his lifetime. And 4th. That if ever executed by him, he had subsequently revoked them. They state that they have ample testimony to sustain the grounds stated; and that they make no appeal to the consciences of the defendants, and desire no discovery from them.

This amended bill was answered by Bryan and wife, Leigh, John St. George Randolph by H. L. Brooke his guardian ad litem, and Henry St. George Tucker. This last insists that the codicil of 1831 is valid, but that the will of 1821, if originally made when John Randolph was sane, of which he does not feel called upon to give an opinion, was cancelled when he was sane. The amended bill was taken for confessed as to the other parties: and the cause coming on to be heard on the 24th day of June 1843, the court having decided to direct an issue, the plaintiffs, and the defendant John St. George Randolph, whose interest is the same with the plaintiffs, proposed that the court should enter on the chancery side, a decree directing an issue to be made up and tried on the law side of the court, whether the testamentary papers in controversy be, all, or either of them, the will of John Randolph, or not; and that the verdict of the jury which should be empaneled *to try the said issue, should be certified to the chancery side of the court: and that' an order should be entered requiring the defendants Meade, Key, Bryan and wife, Henry St. George Tucker, and William Leigh executor of John Randolph, to become defendants in, and to adopt the plea prepared for them in certain pleadings which were offered upon a feigned contract, to ascertain whether or not the testamentary papers in controversy were, any, or either of them, the true last will and testament of John Randolph. The plaintiffs in equity, and the lunatic defendant John St. George Randolph being made therein to maintain that the said testamentary papers were not the t,rue last will and testament of John Randolph, nor was any of them; but that on the contrary, all and each of them were void in law; while on the other hand, the defendants (except the lunatic) were made to allege that the papers aforesaid were the true last will and testament of the said John Randolph deceased; and that neither they, nor any of them, nor any part of them were void in law. In declaring upon which feigned contract, the plaintiffs in the declaration in fact say, that although it be true (as the plaintiffs admit it to be true) that all the said testamentary papers except one, were wholly written in the handwriting of the said John Randolph deceased, ■ which one was signed in his own handwriting, and was attested by more than two witnesses subscribing their names in his-presence, and at his request, and although it be true, as the plaintiffs admit it to be true, that all the said papers were signed, sealed and published by him as and for his last will and testament, yet they were not his true *30last will and testament in law, nor were any of them or any part of any of them; but that on the contrary, they and each of them were wholly null and void in law; because they say, that at the several times of makiilg', signing, sealing and publishing the said several papers, as and for his last will and testament, *the said John Randolph was ' of unsound mind and memory, incapable in law of making a valid, testamentary disposition of his property, such as the said papers import; and because they say, that after making, signing and sealing the said several testamentary papers aforesaid, he the said John Randolph wholly revoked them, and each of them, and left them at his death so revoked.

The plea proposed for the defendants is in the usual form, admitting the feigned contract as stated in the declaration; denying that John Randolph was of unsound mind at the time of the execution of the testamentary papers, or that he afterwards revoked them. And so they say that the papers aforesaid are the true last will and testament of the said John Randolph, and of this they put themselves upon the country; and the plaintiffs likewise. And the complainants proposed to admit on the record, that the testamentary papers in controversy, were executed by John Randolph deceased in due form of law, in the manner stated in the declaration offered by them; and that they should rely, in opposing the said testamentary papers as the last will and testament of John Randolph, only upon his insanity, and the revocation of the said testamentary papers, in the manner set forth in the said declaration. This motion was opposed by Meade and Key, Bryan and wife, and Leigh, the executor of Randolph, who moved the court to make a decree, directing an issue to be made up and tried at the bar of the court, to determine whether the will and codicils in the bill mentioned, or any of them, be the true last will and testament of John Randolph deceased, or not: in which issue, the defendants William Meade, Francis S. Key, and John R. Bryan and wife should be plaintiffs; and the plaintiffs, and Henry St. George Tucker (one of the defendants) should be defendants: and farther directing, that on the trial of that issue, the certificate of the clerk of the general *court of the depositions taken and considered by that court on the probat of said wills and codicils., including the deposition of William Leigh, be read, to have such weight as the jury may think proper to give them: and that William Leigh, if required to testify by any party to the issue, be received and examined as a competent witness. There were other instructions embraced in the scheme for a decree proposed by- said defendants, which are not necessary to be stated here.

The court overruled both motions, and made.a decree, by which he dismissed the bill as against William Leigh in his own right, with costs, and proceeded to direct, “that without any feigned pleadings for that purpose, a jury be empaneled at the bar of this court, on the chancer3r side thereof, to determine by their verdict the issue, whether the testamentary papers admitted to probat in the general court on the 15th day of July 1836, as the will of John Randolph deceased, copies of which are filed in this cause with the plaintiffs’ bill, be, or any or either of them, the will of said John Randolph deceased, or not; on the trial of which issue, the defendants William Meade, Francis S. Key, John R. Bryan and wife, and William Leigh, executor of John Randolph deceased, shall be the plaintiffs: and complainants in the bill, John St. George Randolph, a lunatic, by Henry L. Brooke, his guardian ad, litem, and Nathaniel Beverley Tucker, shall be defendants. And the court not being satisfied which side of said issue the defendant Henry St. George Tucker would choose to sustain, doth order that, he be at liberty to sustain either, as to him may seem proper, when said issue is tried. And the court declined to make any order as to the reception of depositions or witnesses on the trial of the issue; but referred such questions to the judgment of the court that should preside at the trial, to be decided as they might be presented or arise.

*From this decree the ‘plaintiffs, and Nathaniel Beverley Tucker, and John St. George Randolph by his committee Henry L. Brooke, appealed to this court.

Daniel for the appellants.*

The first question to be considered is the dismissal of the bill as against judge Leigh personally, with costs.

Judge Leigh admits possession of the estate. He is executor in trust for the slaves: has large devises and legacies under the will, which there is no proof he has given up: has administered: and claims, if he has not received, commissions.

The statute under which this suit is brought seems to contemplate the disposal of the whole controversy. The proceeding is by bill in equity. All the parties in interest are before the court: and upon the general powers of a court of equity, full justice in, and a final end of the controversy may be made. Such has been the view taken of the statute, and the action under it. Paul v. Paul, 2 H. & M. 425; Ford v. Gardner, 1 Id. 72.

If this suit is brought merely to contest the bill, then judge Leigh is not sued as executor, but personally; and if co.sts are awarded the plaintiffs, they must be against him personally. 1 Ecc. Rep. 411. Even in a citation in the ecclesiastical court the proceeding is personal: 4 Chitty’s Gen’l Prac. 140; and costs’ may be decreed against the executor.__

*31But if there had been error in joining a demand for an account and surrender of the estate, and for general relief, the executor by answering has admitted the jurisdiction, and the court will decree against him; unless indeed the prayer of the bill is wholly alien to the jurisdiction of the court, which cannot be alleged in this case. The function of a bill in equity as to discovery, and as *to facilities afforded to carry on the contest in relation to the will, has been recognized in Hobbs & Malone, 1 Rob. Rep. 346; and Kincheloe v. Kincheloe, 11 Leigh 393. It is true that a final decree cannot be made in the cause, if the will shall be set aside without an administrator, but an account may be had, Hansford v. Elliott, 9 Leigh 79; Samuel v. Marshall, 3 Leigh 567, and the cause will be retained until an administrator can be appointed and brought before the court. Why indeed should there be two suits? The second, if there are two, must recite the first, and make Leigh a party personally; and he might well say his personal title to the executorship had not been tried, and should be tried in that case.

2. The second question is the competency of judge Leigh to give evidence on the trial of the issue before the jury, to sustain the will under which he has qualified as executor.

If judge Leigh is a proper party defendant in his own right,' then he cannot be a competent witness; because he will be responsible personally for the whole estate in his hands, and for the costs; and he will be interested on account of his commissions.

But whether personally a party or not, he has an interest in the record as evidence for him, if a suit shall be brought for the estate; and a fortiori is he interested if he is held to account for the estate in this suit. 2 Stark. Ev. 747. Indeed it is a universal principle that an executor can in no case be a witness for the will in a proceeding to establish it, where he has qualified and intermeddled with the estate, even where he has no legacy under it: and this both because he may be liable for costs, and because he may be responsible for his acts if the will is set aside. See 1 Ecc. R. 411, 478; 2 Williams on Executors 1238; Duvant v. Starr, 31 Mass. R. 527; Sears v. Dillingham, 12 Id. 368; Vansant v. Borlieu, 1 Binn. R. 444.

*Again. It is generally true that a party cannot be examined as a witness. 3 Stark. Ev. 1061; Stean v. Bowman, 13 Peters’ R. 209. The cases at law where an executor has been examined, have all been in ejectment and other proceedings about the realty. See Williams on Ex’ors, supra.

In equity parties defendants are examined for each other, when there are separate issues relating to different interests, or where they are merely formal parties. Gresley’s Equ. Evi. 202-4. So too at law a defendant is sometimes examined, but never where he is interested in the issue; and he adjudges himself interested where he takes a deposition. Dixon v. Parker, 2 Ves. sen. 219. But in equity an executor is never examined because he may be sued for the debt, and is liable to pay costs. Croft v. Pyke, 3 P. Wms. 180; Maybank v. Metcalf, 3 Atk. 95; Fotherby v. Pate, Id. 604; Gresley Equ. Evi. 243.

3. The third question is as to the form of the issue, and the place of trial.

This is a legal trial, in regard to which the statute uses legal terms. What is an issue? It is a single, certain, and material point issuing out of the allegations or pleadings of the plaintiff and defendant. 1 Chitt. PI. 566. An issue should be a single point, but it is not necessary that such point should consist of a single fact. Several facts may be necessary to the point of defence. The practice of making up the issue by feigned pleadings is authorized and sustained by Paul v. Paul, and Ford & Gardner, and the usage is recognized by judge Baldwin in the case of Hobbs v. Malone,1 Rob. R. 346. In equity the issue is always made up, and it is referred to the master to settle the terms, if the parties cannot agree. 2 Smith’s Ch. Prac. 76. The convenience is illustrated in this case, in which we propose to admit the regular execution and publication of the will, and rely solely on the incapacit3r of the testaior at the *time of executing the papers, and his cancellation of them after-wards. Admitting as we do the facts of executing and publishing the papers, and taking on ourselves the onus of proving either the insanity of the testator, or the subsequent cancellation of them, it was our right to open and conclude the cause before the jury, of which the court has deprived us against all principle. See Burton, v. Scott, 3 Rand. 399.

But again. The cause should have been tried on the law side of the court. It is a legal trial, and a court of chancery has no authority to try legal issues. Those -which that court is authorized to direct to be tried at its own bar or elsewhere, are chancer3r issues. 1 Rev. Code 205, 215, 257. A court may direct an issue to be tried for its own information, which it may strip of all the legal incidents of a trial; or it may direct an action to be brought, in which case the court has no control over the rights of the parties. 2 Smith’s Ch. Prac. 74. If we are in a common law forum we may take a bill of exceptions, which the judge is bound to sign; or if he refuses to do so we have a specific ^remedy. A chancellor does not sign a bill of exceptions; and there is no mode of compelling him to put a question upon the record.

Robinson* for appellees Bryan and wife.

A testament of chattels, it is well known, may be proved before the ecclesiastical courts of England in two ways, either in the absence and without citing the parties interested, which is called in common *32form; 1 Wms. on Ex’ors 188, or after citation, which is called in solemn form. Id. 192. But in England there is no court of probat for wills of real estate. Neither will the courts of equity of England pass upon their validity. The leading cases'there are Archer v. Masse and others,' 2'Vern. 8; Andrews v. *Powys, 2 Brown’s Par. Cas. 504, (Tomlin’s edi.) and Keerick v. Bransby and others, 7 Id. 437, which settle that a court of equity canno.t determine the validity of a will of personalty, because such determination belongs exclusively to the ecclesiastical courts; nor of realty, because the heir may bring ejectment. There have been instances of issues directed on the bill of an heir, where no opposition was made to that course of proceeding; but it is not the regular course where he claims to have a legal title. “He may bring his ejectment, and if there be any impediments to the proper trial of the merits, he may come into equity to have them removed. But he has no right to have an issue substituted in the place of an ejectment.” Jones v. Jones, 3 Meriv. 171, 2; S. C. 7 Price 663; 3 Eng. Excheq. Rep. 266; Jones v. Frost & others, 3 Madd. 1; Jacob 466; 4 Cond. Eng. Ch. Rep. 217.

It was the purpose of the act of Virginia of 1711, not only to confer upon our courts of probat such jurisdiction as the ecclesiastical courts possess in regard to wills of chattels, but also'-to confer'upon them authority to pass upon the validity of wills of land, after citation to the heir; and to make the action of the court *óf probat*final as to wills of land; except in the case of persons under disabilities, to whom a certain period of time was allowed, after their disabilities should be removed. 4 Hen. Stat. 13, 14. This mode of proof seems to have been found inconvenient in respect to the personal estate; and in 1744 an act was passed declaring that when wills were exhibited to be proved it should be lawful immediately to receive the proof of them; with a proviso that where lands were devised away from the heirs, such proof as to them should not be binding; but the heirs should be summoned, and be at liberty to contest the validity of the will, as if this act had never been made. 5 Hen. Stat. 231, 2. The state in which the law was then left, appears by the revised act of 1748. *5

Hen. Stat. 455. No change seems afterwards to have been made until the act of 1785, which is not materially different from the present statute. 12 Hen. Stat. 142, g 11; 1 R. C. 1819, p. 378; § 13, 14.0

More particular enquiry is now to be made as to the rules which prevail in England; and how far they are applicable under our statute.

In the ejectment brought there by the heirs against the devisees, the executor is no party either individually, or as executor. The heirs are the lessors of the plaintiff; the devisees are on their motion admitted defendants. The plaintiffs prove the seisin of the ancestor, and their descent from him. Adams on Ejectment, 252, 3. This makes out a prima facie case for them. It then devolves upon the defendants to establish the devise. In such a case, who in England makes the first address to the jury; and who has the general reply? Is it the heir whose pjúm'á^ facie, 'case', is .made out, or is it the devisee who has to establish the devise? The rule is well established that the devisee makes the first address to the jury, and has the general reply. Adams on Ejectment, 259; Goodtitle v. Braham, 4 T. R. 497. In the case of Corbett v. Corbett, 3 Camp. 368, this rule is distinctly recognized, as applicable to a controversy between the heir and devisee; and is extended to the case of a devisee claiming under the first will, against a devisee claiming under a subsequent will or codicil. The first makes out a prima facie case, by shewing a devise to him, valid at the time it was made. The second does not deny this, but takes upon himself the burthen of establishing a subsequent devise: and that party opens and concludes, whose title depends upon sustaining the devise, the validity of which is in question. This is so, although the devise in question is impeached upon the ground that the decedent was of unsound mind at the time of making it.

*It may be that the estate of the ancestor is not a legal estate, for which his heir can bring ejectment; but an equitable estate for the recovery of which - there is remedy only by- bill in equity. In such a case the court directs an issue of devisavit vel non. The very nature of this issue, which affirms on the one hand that there was a devise, and on the other denies it, shews that the devisees must be the plaintiffs in the issue, and that they must have the right of opening and concluding, as in the action -of ejectment. Sometimes also the question as to the validity of a will, arises upon a bill in equity by the devisees against the heir. In a case of this sort also, the course is to direct an issue of devisavit vel non. The case of Tucker v. Tucker &c., 13 Price 119, is of this character; and shews most clearly that those who affirm the validity of the will are the plaintiffs, and the heir is the defendant in the issue.

The same rule prevails in the analogous case of an issue as to the validity of a deed. Tyrell v. Holt, 1 Barn. 12. It may be attempted to disparage Barnardiston, but lord Eldon has testified in his favour. Duffield v. Elwes, 1 Bligh 538.

No ground is furnished by our statute for introducing a different course here. It was the policy of the legislature of Virginia, to obtain the benefits which resulted from the course of proceeding in England, as free from objections to it as might be practicable. They thought that in the great mass of cases, wills, • whether of realty, or of personalty, might safely be allowed to be proved in common form. But as that proof might be in the absence, and without the knowledge of a person directly interested, they intended to leave the next of kin the *33same right to require a will of personalty to be proved, that they would have had in England after proof in common form, with a change only of the forum from the court of probat, to a jury upon an issue out of chancery: and intended to give the heirs an equal right to ^require the will to be proved before a jury, as to real estate. There was danger, however, from the rules of the English courts, in two respects. A trial might there be required of the validity of a devise 16 or 18 years after the testator’s death, as was the case in Tucker v. Tucker &c., 13 Price 119. And where a testament of chattels had been proved only in common form, those relying on it might be required after a longer time to prove it in solemn form: and if the witnesses were dead in the mean time, the instrument might be endangered. 1 Williams on Ex’ors 192, 3. The legislature of Virginia thought that the right to require reproof of the will, should not continue for an indefinite length of time; and they limited it to seven years after the probat, except in the case of persons under disabilities. And it seemed to them that whether the witnesses who testified in the court of probat, were dead or alive, no injury could result from letting the record of their testimony go to the jury that might try the issue, to have such weight as they might think it deserved. And hence the provision in the act in 1 R. C. 1819, p. 378, § 14. This provision does not in the least change the nature of the issue, or the relation of the parties to it. The legatees and devisees still affirm that the will is valid; the next of kin and heirs that it is not. The former are the plaintiffs, and the latter the defendants in the issue: and upon the former it is incumbent to introduce evidence to establish the validity of the will. As a part of that evidence the certificate of the oaths of the witnesses at the time of the first probat, is admissible; but this does not necessarily make out their case ; or even a prima facie case; it has such weight and such only, as the jury shall think it deserves.

There is no objection to feigned pleadings, provided they' be so framed as to try the question properly. The counsel on the other side may have an issue if they please, in the form of a wager that the devise to Mrs. *Bryan is valid. But they cannot be allowed to frame an issue in a novel manner, contrived for the purpose of giving them that which the heir never has in England, the right of opening and concluding. Nor can they be allowed to gain this right by such an admission as they propose to make; which, in substance, is an admission that if Mr. Randolph was of sound mind when he made the papers admitted to probat, and if he never cancelled them afterwards, the parties relying upon those papers are his devisees and legatees. Ingenuity of this sort has been attempted elsewhere and failed. The argument urged here is the very argument urged in Doe v. Bray & others, 1 Moody *&*Malk. 166; 22 Eng. Com. Law Rep. 278; and the answer there given by the bar and bench is conclusive here. In Brooks v. Barrett &c., 7 Pick. 94, the issue tried was whether the testator was of sound mind, and yet the ' right to open and close, was held to be with ' those who offered the will for probat. Regarding the action in Virginia upon the issue, as but a substitution for farther action in the court of probat, it is impossible that a different rule can be adopted here. And it is to be so regarded.

It was remarked by Mr. Daniel, that the practice is not to stop with a decree setting aside the will, but to go on afterwards and decree distribution: and Paul & others v. Paul, 2 H. & M. 425, was cited. But Ford v. Gardner, 1 H. & M. 71, is the other way. There, after a verdict against the will, the decree simply set aside the will, declared it null and void, and allowed the plaintiffs their costs. In Kincheloe v. Kincheloe, 11 Leigh 393, the bill appears to have been framed under the same idea that the decree setting aside the will would end the cause. And the opinion of judge Baldwin in Malone v. Hobbs, 1 Rob. R. 388-9, proceeds also upon this idea.

This position that upon the bill nothing is to be determined but the validity or invalidity of the will, will *be found to bear materially upon the order dismissing the bill as to the defendant Eeigh in his individual character; and upon the question in regard to his competency upon which directions are asked.

In England upon the issue of devisavit vel non, though the court of equity cannot control the conclusion of the jury upon the will, it takes care that the cause shall be fully and satisfactorily tried. At the trial the presiding judge instructs the jury upon any points of law which arise, and they come to their conclusion upon the whole case, as to the validity of the will. The judge, though dissatisfied with that conclusion, can grant no new trial. He only expresses that dissatisfaction to the court of equity which directs the issue; and the court of equity directs a new trial, if one seems proper. Pemberton v. Pemberton, 13 Ves. 290; Winchelsea v. Wauchope, 3 C. E. Ch. R. 474. So here, though the verdict of the jury upon the issue is final between the parties, unless set aside, yet there is a power of setting it aside and granting a new trial for good cause, as in other trials. This power is not in the court before which the issue is tried, as seems to be supposed on the other side, but in the court of equity which directs the issue. And it carries with it the power of taking care that there shall be a full and satisfactory trial; power to guard against, as far as practicable, any necessity for a new trial. In Ford v. Gardner and others, 1 H. & M. 84, the court say, “as no direction from the court sitting in chancery had been given respecting the reading of the depositions or any of the papers filed in the cause, the omission to read any of those documents was unimportant,” which nec*34essarily supposes that the court has a right to give such directions.

In the argument here, the idea has been developed upon which the hope is indulged of getting rid of the papers which have been admitted to probat. The writing *of 1821 having the signature cut off, it is said that the act must be presumed to have been done by the deceased when sane; that there is no evidence to repel this presumption except Mr. Leigh’s, and by excluding his testimony at the trial of the issue, a verdict will be obtained, declaring the writing of 1821 and the codicils thereto null and void; and the parties contesting the same will thus get a share of the estate, although if that cancellation be valid, it is absolutely certain that the writing of the first of January 1832, made at the time the cancellation was done is valid also; and by that writing the estate was devised away from them. The mind revolts at so extraordinary a conclusion. If Mr. Leigh was competent to testify to Mr. Randolph’s insanity on the first of January 1832, so as to avoid the writing of that date, his evidence ought to be equally admissible to prove insanity at the same time, for the purpose of avoiding the cancellation of that date. Else this most monstrous injustice would result, that by reason of the evidence of Mr. Leigh proving Mr. Randolph’s unsoundness of mind at the time of making the writing of January 1832, and by consequence the invalidity of that writing, the son of Mrs. Bryan would be deprived of the estate thereby devised to him, whilst the mother would also lose what the testator devised to her (when he was of sound mind) because of an act of cancellation which could not be valid if the writing of 1832 was invalid.

Mrs. Bryan has a right to an issue, which will permit a verdict to be found distinctly and separately, in regard to the validity of the devise to her. It was never the intention of our statute to put a devisee after probat of a will, in a worse condition than he would be in England without any pro-bat. And there it has been adjudged by the highest authority, that the issue must be so directed as to permit a verdict finding part of a will valid, even though it should find another part invalid. *Trimlestown v. Lloyd and others, 1 Bligh. N. S. p. 444 to 475, 6. The order directing the present issue proceeds, it is true, upon the principle that the whole of the papers may be valid, or one or more. But it would have been very proper to direct separate issues, so that the validity of the devise to Mrs. Bryan might be tried fairly, untrammelled altogether with the validity of the will and codicils in other respects: and the court can now either amend the decree in this particular, or give directions that any evidence may be received on her part which could be admitted upon a separate issue between her and the heirs at law. That upon such separate issue she has a right to the benefit of the executor’s evidence, is placed beyond all question by the adjudications of the English courts.

The earliest case is Fountain v. Coke, 1 Mod. 107, in which it is said, “an executor may be a witness in a cause concerning the estate, if he have not the surplusage given him by, the will.” Of course the same consequence ensues if the surplusage be released. But it is argued that here the executor has acted. Let it be that he has sold part of the estate, and received the proceeds, does that produce any difference in his interest, when he has released his individual rights? Is there not a liability for those proceeds, whether the will be sustained or set aside; to the devisees or legatees in the one case, or to the heirs and next of kin in the other? And is he to gain or lose, whether he makes payment to the one set, or to the other? But in Lowe v. Jolliffe, 1 W. Bl. 365, the very ground was taken that is so much insisted upon here, that the executor having acted, will be liable if the will is set aside to answer in damages. But lord Mansfield said, “his being liable to actions makes no difference; for so are all agents, and yet they are allowed to be witnesses.” In Goodtitle v. Welford, 1 Dougl. 139, where the devisees were plaintiffs in ejectment, a like decision was made. Other cases affirm the same principle; *Bettison v. Bromley, 12 East 250, where the wife of the executor was an attesting witness; Phipps v. Pilcher, 1 Madd. 144, p. 87 of Am. edi.; S. C. 6 Taunt. 220; 1 Eng. Com. Law Rep. 363; Wood v. Teage and others, 5 Barn. & Cress. 336; 11 Eng. Com. Law Rep. 248.

It is needless to examine the cases in the ecclesiastical courts, where the executor makes himsely a party to the contest; it is enough that here the executor was no party in the court of probat; neither insisting upon the establishment of the will, nor opposing its establishment. The fact of his having been received after the release, in both the cases in the court of probat, is strong evidence of the law in regard to his competency. No one can suppose that in those cases his testimony would have been allowed if it had been possible to exclude him.

But his position is supposed to be different on this bill from what it was in the court of probat. Is this so? Suppose a case under the act of 1838, Sess. Acts, p. 71, ch. 92, where a legatee propounds the will, and all persons interested are cited. Does any one suppose that under this act the person named executor would be incompetent, merely for being so named if he made himself no party to the contest? Suppose even he was cited. Does the mere circumstance of a person’s being cited prevent his testifying, if he had no interest in the question? Do not cases constantly arise in the ecclesiastical courts where persons are cited and yet testify. Arnold v. Earl &c., 2 Lee 380; 6 Eng. Eccl. Rep. 164. The whole purpose of citation is answered when the person appears, and declares he does *35not oppose the will. He cannot afterwards oppose it. And then taking no part in the contest, he may be examined if he is otherwise competent. If this would have been so in a case under the new act, can it be otherwise when the proceeding is by bill, which is regarded as but a continuation of the action of the court of probat, and for which the new act makes a substitute?

*The ground is pressed that the executor is a party in this case, and that no party can be admitted. In Worrell v. Jones &c., 7 Bingh. 395; 20 Eng. Com. Law Rep. 177, Tindal, C. J., says: ‘‘No case has been cited nor can any be found in which a witness has been refused upon the objection in the abstract, that he was a party to the suit.” And in Fletcher v. Clegg, 1 Younge 345, it was held that a defendant in whom a legal estate was vested as a trustee, and who had permitted his name to be used by his codefendants in a action of ejectment, and also in a bill filed in another court, and who joined in the same answer with the other defendants, had not such an interest as to preclude him from being examined for the other defendants, in certain issues directed by the court. The only enquiry says Tindal, C. J., in Worrell v. Jones, seems to have been “whether the party called was interested in the event or not; and the admission or rejection of the witness has depended on the result of this enquiry.”

It may be argued that the executor is interested, not only upon the ground alreadj' noticed that he has acted and intermeddled, but because he is responsible for costs, and the expenses of his executorship; and his being indemnified depends upon sustaining the papers as a will of personalty. The cases cited may be considered as answering this objection, so far as it is incumbent on . the devisee to answer it. But another answer may be given of a more comprehensive nature. This is not a case in which, if the' executor had propounded the will and failed, the ecclesiastical courts of England or the courts of probat in Virginia would have adjudged him to pay costs. 1 Williams on Ex’ors 208; Wilcox v. Rootes and others, 1 Wash. 140; Spencer v. Moore, 4 Call 423. Costs are paid out of the estate where the contest is produced by the state in which the deceased left his papers. Upon this principle the court of appeals in both the cases before it involving the validity of Mr. Randolph’s testamentary ^papers, directed the costs to be paid out of his estate. A fortiori when a competent tribunal has passed upon the papers and sustained them, the executor will not be mulcted with costs and expenses. The expenses are incurred in carrying that probat into effect; the costs are incurred in sustaining it. And no matter how the issue may result, the costs and expenses incurred by the executor, whether in reference to the realty, or in reference to the personalty, will be a fair and a proper charge out of the estate. Then as to the right of the executor to commissions. Whether the will be sustained or set aside, the question of commissions is equally open; and the right of the executor to them no greater in the one case than in the other, up to the date of the decree on this bill. And if it be said that after such decree, he might get commissions in the one case and not in the other, the answer is, that in the one case the commissions are considered as earned by the services for which they are allowed, and in the other, where there are no commissions there would be no services.

It is by no means true that if the bill be set aside the plaintiffs will have a right to a decree in this suit against the executor for the fund in his hands. On the contrary, the right would be in the rightful administrator, and would have to be brought forward by a new bill filed for that purpose. As the liability would be to the new administrator if the will be set aside, the reasoning in the case of Fotherby v. Pate, 3 Atk. 603, which would hold an administrator pendente lite to be competent, would also apply here. In Croft v. Pyke, 3 P. Wms. 180, another case cited on the other side, there was a debt due to Mrs. Croft, and by her will her child was her legatee. After the qualification of her executor a suit was necessary to recover the debt, and the experiment was tried of bringing it in the name of the legatee, and using the executor as a witness. This experiment failed, as might have been expected. It does not follow *that because the executor could not be received to prove a right in the testator, he would be equally incompetent to prove a right under the testator. On the contrary, the distinction between the two cases was recognized by this court in the case of Smith and wife v. Townes’s adm’r, 4 Munf. 191, a suit by a legatee against a third person for a slave specifically bequeathed by the testator. Por it was there held, that it was competent to the plaintiffs to prove by the executrix, if she had no objection to being examined, her assent to the legacy, though they could not prove by her that the testator had title to the slaves.

Taylor on the same side. The errors alleged by the appellants to exist in this decree are, 1st. The dismissal of the bill as against judge Eeigh personally. 2d. The order for the trial of the issue on the chancery side of the court. 3d. The direction of the issue, in the language of the statute, without feigned pleadings. And 4th. The giving to the parties sustaining the will the position of plaintiffs; and as such the right to open and conclude the cause before the jury.

The other questions are indeed minor matters compared to the question, who has the opening and conclusion of the cause, and the competency of judge Eeigh. It is not to be disguised that he is an important witness; and we desire the judgment of this court as to whether he may be ex*36amined, or his deposition read on the trial of the issue.

I have little to say on the question, whether the judge erred in dismissing the bill as against judge Heigh personally. He had been admitted to qualify as executor ; he claims nothing except as executor, and we do not admit that he can be held liable personally for the estate in his hands, or for any acts he has done or may do, in the faithful execution of his office of executor.

Judge Heigh cannot deny that he is executor;, his answer *would estop him, and every thing may be recovered against him in that character, for which he can be held liable as an individual. It is therefore wholly unnecessary to have him before the court in his own right.

The second question is not a matter of much importance under our system, where the judge has both common law and chancery jurisdiction. Although it was formerly convenient for the chancery court to send the issue to a common law court to be tried, the statute never required it to be done; and now neither the terms of the 13th section of the statute, or any interpretation of it which has been given, nor convenience demand that it shall be done.

It is said indeed that in a court of law a party may have a bill of exceptions, which he cannot have in a chancery court; but the chancery court is bound to put the question on the record; and we cannot presume that the judge, sitting as a chancellor, will be less disposed to perform his duty, than he will be when sitting as a common law judge.

3. The general practice is not to require feigned pleadings, Hobbs v. Malone, 1 Rob. R. 346; Kincheloe v. Kincheloe, 11 Heigh 393; though there was a feigned issue in the case of Ford v. Gardner, 1 H. & M. 72; and Paul v. Paul, 2 H. & M. 525; but the question was not made in these cases. But the main point upon this question is who is to hold the affirmative of the issue; and upon that point I submit the cause upon the authorities and argument of Mr. Robinson.

4. But the important question in the cause is whether the appellees are entitled to have the evidence of judge Heigh on the trial of the issue.

The testimony of judge Heigh was most material to establish the invalidity of the will of 1832; which was absolutely necessary to be done before the heirs and next of kin of John Randolph could have any interest in his estate: as by that will they were all disinherited. *.Now bjr this same testimony it is proved that the cancellation of the will of 1821 was made at the same time, and in the same fit of insanity in which the will of 1832 was written. These heirs being in court, though not parties, Heigh was examined, and by his testimony this will of 1832 was put out of their way; and the same testimony proves both things. Shall'he be heard to establish the one fact, and yet not be heard to establish the other? The court would struggle hard to obviate so gross an injustice.

This is a court of equity, and as was said in Hobbs v. Malone, is a continuation of the probat court. As a court of equity it has authority to see that the issue is fairly made, and tried, to attain the justice of the case: and it is for this court to decide whether judge Heigh’s testimony shall be suppressed because he qualified as executor.

It is a principle of law that a person who is a competent witness in a cause, and in whose testimony other persons have an interest, cannot by his own voluntary act, without their consent, render himself incompetent, and thus deprive them of his testimony. 1 Stark, on Evi. 89. In this case having released all interest as devisee and legatee under the will of John Randolph, and having given testimony on the probat of the will of 1832, the claimants under the will of 1821, and the codicils thereto, have an interest in his testimony of which they cannot'be deprived by any voluntary act of his without their consent.

But suppose that judge Heigh if interested is incompetent, is he interested?

An authority was read to prove that an executor in trust cannot be a witness to uphold the will: but the general rule is the other way. And in Virginia all executors are in trust, as the residuum goes to the next of kin. In England an executor in trust according to the general scope of the authorities is a competent witness *to prove the sanity of the testator, and the execution of the will. Many of the authorities cited by Mr. Robinson sustain this principle; See 1 Philips on Evi. 40, who cites Bailey v. Wilson, cited 4 Burr. 2254; Goodtitte v. Welford, Doug. 140; 1 Mod. 107; Goss v. Tracy, 1 P. Wms. 287. And why not? he has no personal interest, and only gets a burdensome office.

The authorities make no distinction between executors in trust and other trustees; and upon principle there is none. And yet that trustees are competent witnesses to sustain the trust has been again and again decided by this court. Harvey v. Alexander, 1 Rand. 219; Taylor v. Moore, 2 Rand. 563. In principle the case of Harvey v. Alexander, is similar to the case at bar. If this will is set aside, the executor must account to the next of kin; if it is established, he must account to the legatees. In both cases he must account for the same. I refer also to the cases of Lupton v. Lupton, 2 Johns. Chan. Rep. 614.

But it is urged that if this will is set aside, Heigh will be liable as executor de son tort; will be deprived of his commissions; and may be sued for every thing he has sold. Yet the cases cited prove that his liability to be sued as executor de son tort, will not render him an incompetent witness.

If however a person who has regularly qualified as executor in the court of probat, can be considered an executor de son tort, still if he has made payments, and disbursements, according to law, they are *37valid, and the court will not presume he has committed a devastavit. See Coalter’s case, 5 Coke’s Rep. 30 b. ; Parker v. Kett, 1 Ld. Raym. 658; S. C. 12 Mod. 466; Graybrooke v. Fox, Plow. Rep. 275.

If judge Eeigh is an incompetent witness for the claimants under this will upon the trial of the issue, it must be on the technical rule that a party to a cause *cannot be examined: and the case of Stean v. Bowman, 13 Pet. Rep. 210, is cited to support it. It may be doubted if this case is correct according to the authorities; but if it is, it is a case at law and we are in a court of equity, which has a control of the whole case. And the principle can only be sustained at law if sustained at all, on the ground that a party at law is liable for costs. But in a court of equity the costs are a matter of discretion, and may be directed to be paid out of the estate. The principle on which this is done may be seen in Hallam v. Walker, 3 Ecc. Rep. 30; and surely if there be any case in which this may be done, the circumstances of this case will fully authorize it.

But if the court will not direct the costs to be paid out of the estate, can judge Eeigh be subjected to them. He was not a party in the court of probat unless this be such, and he offered no will for probat; but after the proper court had decided that the testamentary papers now in controversy in this cause, were the true last will and testament of John Randolph, he qualified as executor, and no misconduct in his office, is known, or charged by*the plaintiffs.

There are many cases which shew there is no general rule that a party in a cause cannot be a witness; but the question is, whether he is interested. Norden v. Williamson, 1 Taunt. 377; Ward v. Hayden, 2 Esp. Rep. 552; Doe v. Green, 4 Id. 198; Waller v. Governor of Foundling Hospital, Peake’s Ni. Pri. Cas. 153.

Macfarland on the same side. Eirst, is there any sound objection to the form of the issue? It will be remarked, he said, that it had been directed in the very words of the statute. In whatever form it may be propounded, the question must be still, “Were the papers produced a last will and testament or not?” That being the question raised by the parties, and which the statute ^entitles them to submit to a jury, it is remarkable that exception should be taken to the simple and comprehensive form in which it is propounded. The issue neither falls short of, nor goes beyond what is essential to the validity of a will. The form is one appropriate to all cases of contested wills, and to none more than to the one in question. There is no occasion for pleadings in making up the issue; nor should a party be required to resort to them to indulge an opponent, -whose only object is to acquire an advantage not otherwise to be expected. The language of the statute imports a purpose to give the form of the issue as well as the right to it; and it was inadmissible to depart from its literal import, as it was both more fair and convenient in practice to adhere to it.

It was to gain the advantage of the general reply, and that alone, which induced the appellants to seek so earnestly a modification of the issue. Hence the resort to special pleading. They would put themselves in the attitude of a party at law, who assumes the onus probandi, by concessions, and thereby entitles himself to begin and conclude. To do that, it is plain they must concede more that the existence of a part of the evidences or elements of the validity of the will; for so long as the presence of any one element of a valid will is denied, the onus inseparable from the propounder is not removed. The appellants must, if they would secure the privileges connected with confession and avoidance, conform to what is required in that mode of pleading, which is nothing short of the concession of the entire case as pleaded. Eor example, to the plea of infancy, in an action on a bond, the plaintiff may reply it was executed for necessaries. The replication admits the plea, and the defendant is wholly discharged from producing his proofs. But the idea that by conceding a part of the facts, which a party primarily would be required to prove, his opponent entitles himself to the ^general reply, is supported by neither reason or authority. Nor is the unfounded nature of such a pretension less obvious, when the concession extends to facts which prima facie imply the existence of the ultimate fact to be established. 1 Chitt. Pleadings 556-564; Drum v. Simson, 1 Binn. 478; Warren v. Bray, 22 E. C. L. Rep. 278; Fingal v. Blake, 12 Cond. Eng. Ch. Rep. 54. The party holding the affirmative of an issue is entitled to the general reply; and if due execution and publication do not discharge the appellees from producing proofs of the sanity of the testator, and that he did not revoke or cancel the will in question, they held the affirmative. But if there was error in not allowing the appellants the reply, it is not ground for an appeal. Carr, J., in Steptoe v. Harvey, 7 Leigh 501.

2. Did the court err in dismissing the bill as against judge Eeigh personally?

The statute, under which these proceedings have been had, constitutes the court of chancery the forum for the probat of wills in solemn form. The object of the suit is to have the will repropounded; and so soon as there is a verdict, and the proceedings consequent thereupon have been had, it is properly at an end. Other pleadings must be had; new parties introduced ; and very different enquiries from any connected with the question of probat instituted, before a decree affecting the property of the deceased can be pronounced. It follows, that no decree against judge Leigh, except a decree annulling his executorial powers, can be rendered; and of course there is no reason whatever—certainly there is none now—to retain him individually as *38a party. It was, moreover, as executor only that the estate, or any portion of it, pas.sed into his hands; and it is in that character only that he sets up a title to hold and administer it. So far then as he is answerable for the estate, or liable to the appellants, or other parties, it is as executor ; and it is enough that he is before the *court in*that character.

*The next question respects the competency of judge Leigh as a witness in behalf of the will. If he be incompetent, it is because he is interested on the side on which he is called to testify; or because he is a party.

1. It is plain that he has no interest in the result of the suit. The measure of his responsibility is the same, whether he have to account to the distributees, or to the legatees under the will; whether the will be'annulled or confirmed. All proper acts of administration will be wholly unaffected by.'the issue of the contest. Fisher v. Bassett, 9 Leigh 119; Burnley v. Duke, (not reported). The cases which have been cited ascertain that an executor in trust is a competent witness for the will. His claim to commissions the law regards as resulting from his labour and responsibility, and as no' more than a fair equivalent. In that he does not differ from an ordinary trustee, whose competency as a witness is settled. Harvey v. Alexander, 1 Rand. 219; Taylor v. Moore, 2 Id. 563.

The case of Lowe v. Jolliffe is directly in point. The cases apparently in conflict, as the case of Sears v. Dillingham, 12 Mass. R. 368; Vansant v. Borlieu, 1 Binn. 444, turned on the liability of the executor for costs, and are of no force unless it be shewn that judge Leigh is liable for costs. The same objection applies to' the cases from the ecclesiastical reports. Here an executor is not liable to costs. Spencer v. Moore, 4 Call 423; Wilson. v. Rootes, 1 Wash. 140. No executor could be more free from objection, nor less liable to costs, upon the familiar principles of a court of equity than judge Leigh. See Willis on Trustees 231; 3 Eccl. Rep. 32.

Is he to be excluded because he is a party? See opinion of C. J. Tindall, in Worrell v. Jones, 20 Eng. C. L. Rep. 177; Bent v. Baker, 3 T. R. 32. The rule is greatly relaxed from its early strictness. 2 Camp. Rep. 333. It does not appear from the case in 13 Peters, whether the witness was not excluded because of his ^liability for costs, nor to what point he proposed to testify. The case confounds objections to the credit of a witness with those which go to his competency. It is a familiar practice to examine parties in chancery, and the question is to be determined by the principles of that court. Kincheloe v. Kincheloe. The only sensible course is to follow ihe authority of C. J. Tindall, and disregarding the technical objection to the examination of a party, to reject or admit the witness, according as he may be interested in the issue or not. It would lead to consequences abhorrent to every principle of equity, to exclude the very witness upon whom the appellants relied to set aside the will of 1832, necessary to be put out of the way to enable them to assail the will now in question.

C. Johnson in reply. 1. The first question I shall consider is the dismissal of the bill with costs, as against William Leigh personally.

Under the will and codicils which have been admitted to probat, Mr. Leigh is a large legatee; and he is executor. He has qualified, and taken possession of the personal estate, and so much of the land as was given him in trust for others. The plaintiffs come into court to test all the provisions of the will; to question his appointment as executor, and the propriety of his taking possession of the estate; and ask that he shall account for hires and profits. He has answered, maintaining the validity of the'will, and of his qualification as executor; and stating that he had released the legacies to himself. The court assuming that he had released the legacies, though there is no evidence of the fact, dismissed the bill as to him personally.

Mr. Leigh was properly before the court, because there were devises and legacies given to him in the will. If he had released, we were seeking to obtain what he had relinquished. In such case, there should be a decree ^establishing the title, and whether with costs, depends upon the circumstances. But we do not rely solely on this ground. Mr. Leigh should be before the. court individually to contest the very gist of this matter; and it would have been more proper to dismiss the bill against him as executor. If we recover, we ask the surrender of the property ; not as executor; for when the decree sets aside the will, it sets aside his letters of administration. The primary purpose is to ascertain the validity of his letters of administration. He is here to maintain his right to the office of executor, and he must do it by supporting the will. The office is a right of which an executor cannot be deprived. The court is bound to give it to him. Is this then a question in which Mr. Leigh is interested as executor, and not as an individual? He thought the office worth accepting; and having accepted it, he cannot be amoved but for maladministration. This then being an individual interest, he must be before the court as such. When called executor it is a mere descriptio personas. The plaintiffs do not admit the will or his executorship.

Again: this decision, is a decision by anticipation that when this question of the validity of the will is decided, Mr. Leigh will be sent out of court, without farther proceedings against him. But the cause will not be at an end, even if the sentence of the court of probat is affirmed; because Mr. Leigh’s legacy having been released, the plaintiffs are entitled to a decree for that. In any event, therefore, he should be before the court.

*39But suppose the will is set aside, and the plaintiffs have a right to call upon Mr. Leigh to surrender the land, and account for rents and profits?

Previous to the year 1785, there was no law authorizing a bill in equity to contest the validity of a will. The whole proceeding was in the probat courts. In that year the law was enacted under which this bill was *filed. Did the legislature mean in giving this jurisdiction to the chancery court, that nothing more than the question devisavit vel non should be tried? See 1 Rev. Code, 378. If we look to the letter of the law, it gives no authority to ask for an account, or a deliverjr of the property; nor does it give authority to the court to pronounce a decree, or to revoke the letters testamentary. But we are sent into chancery to ascertain whether these papers be the last will and testament of John Randolph; and being there, we are to be guided by the established principles of the court. If not, the court has no power but to direct an issue: this issue must be tried in a court of law, and though there is a right to grant a new trial, that would be done by the court of law.

Being in a court of chancery, and entitled to use the general rules of that court as to making parties and bringing them before the court, we have a right to ask everjr thing which a court of equity may grant; and certainly to ask an account; the oldest jurisdiction of the court.

In England the court of chancery cannot try a case of a will; but when such a case comes before it, it sends it to be ascertained by the proper court; and keeps the case; and afterwards goes on to settle it fully and finally.

But it is supposed that the case of Hobbs v. Malone, 1 Rob. Rep. 346, settles this question. So much of that case as applies to this are the pleadings. The court held that the chancery pleadings are not the pleadings upon which the case is to be tried; but that the whole issue is devisavit vel non. But the court had not before it the question, whether you might not unite with this question a prayer for account, or for general relief. The case of Hobbs v. Malone is not therefore an authority against us; and Paul v. Paul, 2 H. & M. 525, is an authority for us. It is true that in Ford v. Gardner, 1 H. & M. 72, the court did nothing more than set aside the will; but nothing more was asked; and it does not appear *that any thing more was necessary. In Burwell v. Corbin, 1 Rand. 131, the case terminated with the decree as to the property; but as the land could not be amoved, and the personal property was in possession of the defendant, it does not appear to have been necessary to do any thing more. But in each of these three cases the executor was before the court in his personal character.

If this will is set aside, Mr. Leigh cannot then be before the court as executor. His office will then be at an end. If he is now dismissed from the cause personally, we shall have to amend the bill and bring him back. Can this be necessary, especially after we have asked in the bill for an account, and it has been conceded in the answer. It is true there will be no personal representative before the court when the executor is set aside; but it is competent for the heirs and next of kin to ask for an account, though a decree for disposing of the fund will not be made until a personal representative is before the court. Hansford v. Elliott, 9 Leigh 79; Samuel v. Marshall, 3 Leigh 567. The question was also discussed in the late case of Smith v. Smith, and the case was decided on the merits, though no personal representative was before the court. But though it may be necessary to decree in favour of a personal representative when the fund is to be disposed of, that decree, which directs Mr. Leigh to turn over the property, is a personal decree. He must do it in person; and an account must be rendered before it can be known what he is to turn over. Obviously therefore he has individual rights, or no rights at all.

2. I con»e next to a consideration of the issue directed in this cause. The act of assembly 1 Rev. Code 378, directs, that “an issue shall be made up.” The court has not directed an issue, but an enquiry at its own bar. Hobbs v. Malone decides that the issue is not made up by the bill and answers. An issue is no new thing, but a familiar proceeding in chancery; and it is always so *made up that it may be tried according to the forms of proceeding of a court of law. At the time of the passage of the act of 1785, under which this proceeding is had, the court of chancery had no authority to try issues at its own bar. That authority had been given by the act of 1777, 9 Hen. Stat. at Large 394, but it was taken away by the act of 1783, 11 Hen. Stat. at Large 343, and was not again given until 1792, 1 vol. old Rev. Code, ch. 64, § 13, p. 64. The issue contemplated by the act of 1785 must have been an issue made up in such form as to be tried in a court of law.

Mr. Macfarland says the law has made up the issue. If so, why direct that an issue shall be made up? Why not direct an enquiry before a jury? An issue, according to Chitty, is that single clear point which proceeds from the allegations and negations of the parties. The issue required by this law is to be made up, which is not done; but the court directs an enquiry, which leaves every thing at large and uncertain, and requires a general enquiry upon the whole subject.

This issue should be tried at the bar of the court of law. At the time this law was enacted, the courts of law and chancery were distinct; a,nd there is no propriety in changing a rule made when the courts were distinct, because they are now united. The legislature had no intention to change the mode of proceeding in the courts, by uniting the jurisdiction.

A most important reason for sending this *40issue to a court of law, is that assigned by Mr. Daniel, that a court of law is bound to sign a bill of exceptions; the chancellor is not bound. If the court has power to grant a new trial, then it is bound to grant it in a proper case; and if the new trial is refused, it is the parties’ right to appeal. Now if the court of chancery is not bound, and the court of law is bound: if it is the practice of the first not to sign, and the practice of the other to sign a bill of exceptions, then the objection is ^important. Is it that a chancellor may upon his own mere motion put the objections upon the record, which shall compensate a party for his rights at common law; rights for which he has the .security of compulsory process upon the court to enforce them.

But again. Has the court prescribed this issue in the proper form? The province of pleading is to ascertain the issue between the parties; and the object of the issue is to inform them of the manner in which proofs should be introduced. The spirit, justice and wisdom of all the cases require that it should be set forth plainly and distinctly what is asked for, and what is denied. A will may be contested on twenty different grounds. Why not require the contestant to state the grounds on which he contests it? When he does, the plaintiff knows what he has to prove: and the evidence is confined to the point. Thus the contestant pleads the lunacy of the testator, and issue is taken upon it; the testimony is confined to the question of lunacy. And so of other cases.

At common law these principles are correct. Upon a plea of non est factum to a suit upon a bond, the whole case must be proved: but the defendant may plead specially that he was a minor; or she was a married woman; or that it was obtained by fraud; or many other special defences. Upon these pleadings, the issue is narrowed •down to a point, and the evidence is confined to [hat.

Mr. Macfarland says, if you confess and avoid, you must confess the whole plea. This doctrine is not to be found in the books. The true distinction is, that matter, relied upon in a special plea must be matter which of itself constitutes a complete defence; so that if established it is 'a complete answer to the plaintiffs’ case. I put the case of suits brought upon bonds, or other specialties: and I say you may rely upon the defence, that the deed never was the deed of the defendant, *by special plea, not putting the execution of the bond in issue. Thus a bond procured by fraud, or from a feme covert, or lunatic, was never valid; and the party may defend him or herself by special plea. 1 Chitty’s Plead. 419. And it will be found to be according to all the regular doctrines of pleadings, given us by the elementary writers, to admit a part of plaintiffs’ case, and plead something else in defence. Por form of a plea of fraud, see 3 Chit. PI. 963. On these doctrines, I rely to shew what should be the form of the issue; and who has the onus probandi.

The issue should be made up, with reference to the matters the parties mean to contest before the jury, in such manner as will put the matters in contest fairly in issue. Suppose there are feigned pleadings; plaintiff propounds the will. The defendant pleads admitting part, and sets iip other matter. He becomes not plaintiff or defendant, these are technical terms, but he has the affirmative; and the plaintiff would be bound to take issue, unless he would set up something else.

In equity the right of reply belongs not to the plaintiff or defendant as such,; but only as the one or the other has the burden of proof. The case of Steptoe v. Harvey adjudges only this, that where a plaintiff in a court of law, upon whom was the onus, who was deprived of the reply, relied upon his bill of exceptions alone without shewing injury, there was no ground for reversal. My opinion has been that the right to reply belonged to the party having the onus upon the pleadings; and so are the authorities, except in the cases in ejectment which have been cited; and this must be, because there is no special pleading in the action. The writ of right is another exception. There a party not being permitted to shew a special defence, is allowed to reply, where by the evidence he has the onus. The case of Goodtitle v. Braham, 4 T. R. 497, cited by Mr. Robinson, shews that the reply goes with the onus, though it goes *with the onus made out by the evidence. So Corbet v. Corbet, 3 Camp. 368. This last case is like the case at bar. There the will never was valid, because it was revoked by the codicil, which was set up as a defence. We set up insanity, though the will was properly executed. In the case of Doe v. Bray, 22 E. C. L. R. 278, both plaintiff and defendant claimed to be heir at law to Mrs. Bray. The admission which the defendant proposed to make, was no fact constituting a part of plaintiff’s ground of claim.

Upon the authorities, a defendant may make admissions in the pleadings, and thus narrow the issue. And in ejectment we may, by admissions, vary the onus, and the right of reply. Upon authority, therefore, I submit that the pleadings in this case should be made up, so as to bring up the questions contested, viz: insanity and revocation.

[Mr. Johnson then reviewed the'authorities cited on the other side, for the purpose of shewing that they did not conflict with the views above expressed by him.] He then proceeded. But it is said the court may direct more than one issue, and that there should be an issue as to Mrs. Bryan, she being entitled to her evidence as to the last codicil. It was not in the contemplation of the legislature that there should be separate issues with the various parties interested. The object of sending the party contesting a will into chancery, is to have all the parties before the court, that all *41might be present, and all bound. This court was preferred, because better able to do justice; because a discovery might be had; and because once having possession of the subject, various questions might arise which might be passed upon, and a final end be put to the controversy. The cause being brought here, the question was what the court should do; and the legislature has directed an issue. The singular number is used, and though that is not relied on, yet on sound principles there should be but one. *The same jury may ascertain whether the will and codicils are valid in whole or in part, or invalid as to part, and valid as to the residue. We then attain the purpose of the legislature in directing one issue, .which authorizes the jury to discriminate. There could be no advantage to Mrs. Bryan to have a separate issue, unless in that case she would have Mr. Leigh’s testimony. The question of Mr. Leigh’s competency would be the same; but if not, that is not a sufficient reason for a separate issue. We have done what is directed by the act of assembly; we could not have brought a bill against each party separately. The parties have gone together in the court of probat. The executor has taken administration. We have sued them together; they have defended themselves together; and a person not competent as to one, cannot be competent as to another. Again, how are these issues to be tried? Which is to be tried first? Or are they to be before the same jury? There is no sound reason in the law, or the circumstances of the case, which authorizes several issues.

The next and last question I shall discuss, is the competency of Mr. Leigh to be examined as a witness on the trial of this issue. First, in what character is he a party? Is he a mere formal party, to enable others to discuss their rights, or a real party to defend his own? We contend he is a party to defend his own rights to a valuable office which he has accepted; and therefore a real and not a formal partjr to discuss the rights of others. Dismiss the bill, and Mr. Leigh’s office is affirmed. Vacate the will, and you expose him to the necessity of surrendering the property in his possession. The office is a valuable office. It gives him the fee simple of the personal property in possession; though charged with a trust; the right to administer the property within certain rules; discriminating between creditors; the right of retaining his own debt. In point of fact he was a creditor, as the accounts shew; and this question of interest *is not a question of quantum, but of realty; however small it disqualifies. It also secures to him a compensation for his services. The act of assembly gives him this right; not for expenses incurred, but for the service, the risk, the labour. This is not the case in England. How is it with tenants for years on rent, if landlord’s title is attacked, so as to affect the tenant’s lease7 The tenant is not a competent wit- | ness. Doe on demise of Foster v. Williams, Cowp. 621; 2 Stark, on Evi. 541; Bourne v. Turner, Strange 632; Doe v. Pye, 1 Esp. Cases 304.

Second. What are the liabilities of Mr. Leigh? He is liable to a decree as before proved; or at anj' rate in another suit commenced upon this record: and this record will be conclusive evidence in such suit, whether it is brought in the name of the present plaintiffs, or an administrator. 2 Stark, on Evi. 747. He is liable to an account; this indeed is admitted in the answer; but it is insisted, that he is equally liable to account to the legatees. But are these accounts attended with the same results to him? If the account is settled with legatees he will be entitled to his commissions. Will he be allowed them against the next of kin? The next of kin proceed against him on the ground that he is not executor; the court decides that he is not. The act of assembly gives compensation to executors and administrators; he is neither. Is compensation to be given out of my estate to one who holds it against my will? If he holds as trustee, the English law does not give him compensation. But he is not even trustee as to the next of kin; they claim not under the trust, but paramount to it; and no law or practice, authorizes compensation as against one claiming paramount to the trust. Again compensation is given for service to the estate ; but if the executor is removed, the administrator who is appointed will be entitled to commissions on the estate. Shall there be double commissions? Or if you divide *them, then he is interested as to half the amount. To the extent of the one half of the commissions, if not to the whole amount, the executor is certainly interested. See Anderson v. Neff, 11 Serg. & Rawle 208; Gilbert v. Shindle, 15 Id. 235.

Again. What are the liabilities of the executor in relation to the slaves? If this will is established, is it certain, that he is bound at law to give them a dollar of their profits? But take it for granted that he is to account for their hires; if he succeeds he is simply to record his assent to the legacy, and there is an end of his responsibility ; if they die, or run away, there is no liability upon him. But if the next of kin get a decree, and take out a distringas, he can only answer it by surrendering them, or he must pay their value out of his own estate. Mr. Leigh in his answer says, why may he not emancipate them? and the counsel say he may set them free. Then, is he disinterested in this controversy? Would not this court say, if he did, or has emancipated them, that he should be personally responsible?

It may be doubtful how far an executor in office under a forged will, or the will of an insane man, would be protected, though certainly he would be to some extent, as is an administrator whose letters are revoked, or an executor de son tort; that is, just so far as he has done what a rightful administrator was bound to do; but not in doing *42what a rightful administrator is not bound, or is forbidden to do. I admit the authority of Allen v. Dundas; but where an executor in office by the award of the court, does that which a rightful executor is not bound to do, or would not be permitted to do, this act cannot divest the rightful representative of his right to the property, as it came from the testator. Woolly v. Clarke, 7 Eng. C. L. R. 249; 1 Williams on Ex’ors 145.

The counsel for the appellees have relied upon the cases of Fisher v. Bassett, and Duke v. Burnley. The first only decides that under the circumstances the appointment *of the administrator was only voidable, not void, and what he had done was valid. But in the case of an executor under the will of an insane man, if he disposes of property under the will in a manner different from what would be the proper distribution of it, when the will is set aside, as if he paid a legacy, the payment cannot be valid. The law can only protect the executor as it would protect an agent who received and paid over money; but if the agent had notice, he is liable: so an executor, if he pays over without notice that his authority is questioned, might perhaps be protected; though that is doubtful. An agent does not. pretend to act for himself ; the executor claims to be the legal owner of the property; and if he gets possession of property not belonging to him as such, he is responsible to the true owner; and therefore it is doubtful whether an executor would be protected where he paid over even without notice. But if he is protected in such case, here is a lis pendens, a citation ; and it is in answer to this bill, that the executor says he has a right to administer this estate without any regard to the rights of the plaintiffs. In relation to the slaves, the responsibility of the executor in either event is different.

Again. We call Mr. Leigh to account. How will he account for his expenditures; his costs in this case; the fees of counsel, and the like. If the will is established, they will be allowed; if it is set aside, he must lose them. But we are told it is his duty to defend this will. His duty to defend the will when the parties in interest are before the court! It is his duty to administer the estate properly, but certainly he has not been sworn to defend this bill.

I come next to the question of Mr. Leigh’s liability for costs, and his consequent incompetency as a witness in this cause. If the plaintiffs fail he will pay no costs; if they succeed he will have to pay costs to them. It is said he is not incompetent, because costs are discretionary *in a court of equity. It is true costs are always discretionary in a court of chancery, and therefore it is, that an executor never is a competent witness in that court. It must be shewn that under the circumstances of this case he is not liable for costs. To say that he is not to be subjected to costs, because he is a nominal party, begs the question. It must be shewn that the discretion of the court cannot reach him.

It is said that the costs are to be paid out of the estate, but there is no such rule, either here or in England, Dean v. Russell, 1 Ecc. Rep. 411. Sometimes indeed costs are paid out of the estate, but there is no general rule of the kind.

In Stratton v. Ford, 6 Ecc. Rep. 101, costs were given against the next of kin for setting up the defence of insanity which failed; and in Martin v. Robinson, 6 Id. 233, costs were given against an executrix, who took administration under a will, which she knew not to be the will of the deceased. And in another case, an absent defendant was ruled to give security for costs, which shews it is a matter of discretion to be determined at the end of the cause. It is true that in the previous controversies in relation to the, wills of John Randolph, the court has directed the costs to be paid out of the estate. That was done under the circumstances of the cases: but this court cannot decide a priori, whether under the circumstances of this case, the same decree will be made.

On the question of Mr. Leigh’s interest, I refer to Dean v. Russell, 1 Eccl. Rep. 411; Jackson v. Whitehead, Id. 478; Williams on Ex’ors 1238.

On the question of his liability for costs, I refer to Durant v. Starr, 11 Mass. Rep. 527; Sears v. Dillingham, 12 Id. 368; Vansant v. Boiliau, 1 Binn. 444; and Stean v. Bowman, 13 Peters 219.

All these cases shew, that an executor whether in trust, or beneficially, is not a competent witness to support *the will in a case in which he is a party; whilst of the authorities cited on the other side, there is not one in which the executor being a party was allowed to be examined as a witness, except the case of Lupton v. Lupton, 2 Johns. Ch. Rep. 614. Not one of the authorities cited by Phillips, p. 119, places an executor in trust and a trustee on the same footing; but so far as the question is raised, the doctrine is overruled. In Croft v. Pyke, 3 P. Wms. 180, lord Hardwicke has decided the question expressly; and so has the court of appeals in the case of Smith and wife v. Townes, 4 Munf. 191.

The question of the competency of the executor depends more upon his relation to the testator and the estate, than to the grounds of costs or interest. He claims an authority to dispose of the subject, according to well known rules, duties, responsibilities and rights. I refer to 43 Law Library, p. 62, the American note to the case of Bent v. Baker.

Under the law of Virginia, judgment for costs is de bonis testatoris. A person sues the executor for a debt of 100 dollars, and calls upon him as a witness; he is not a witness, because he is deeply interested in the question whether the plaintiff shall take these assets out of the executor’s hands. An executor may be a creditor of the estate; may have paid debts of inferior dignity. He stands in the place of the testator, and is not to be a witness in a case where the estate is interested. This is the true ground *43on which an executor cannot be a witness.

But it is said that if the executor has an interest he has acquired it voluntarily, since the appellees had an interest in his testimony, and therefore they are not to be deprived of the benefit of his testimony.

This doctrine has never been held to apply to the acquisition of an interest in the ordinary course of business, where there is no collusion. An executor who had *been a witness, would be a good witness according to these views; but it has never been so held: but being disqualified as a witness you may prove the handwriting of the executor or the party. See Jackson v. Whitehead, 1 Eccl. Rep. 478. In the case of an executor the office is conferred by the testator, and cannot be referred to collusion. 1 Stark. Evi. 118. See Forrester v. Pigou, 1 Maule & Sel. p. 9; Pedley v. Wellesley, 14 E. C. L. R. 448; Eastman v. Winchip, 14 Pick. Rep. 44; Law Library 98.

*

Judge Brooke was related to some of the parties. Judge Stanard had been counsel 'in some of the previous cases in relation to John Randolph’s will,

†

Wills—Contest—Jurisdiction of Court.—Upon a bill filed to contest the validity of a will, the jurisdiction of the court is confined by the statute to the simple question whether the paper admitted to probat is the true last will and testament of the decedent, and it cannot be extended further. For this proposition, see the principal case cited in Lamberts v. Cooper, 29 Gratt. 61, 66, and *foot-note*; Connolly v. Connolly, 32 Gratt. 663 ; Hartman v. Strickler, 83 Va. 234 ; Kirby v. Kirby, 84 Va. 628, 5 S. E. Rep. 539; Jones v. Reid, 12 W. Va. 367; Dower v. Church, 21 *W.*Va. 46; Couch v. Eastham, 27 W. Va. 806; Kerr v. Lunsford, 31 *W.*Va. 687, 8 S. E. Rep. 508.

In Connolly v. Connolly, 32 Gratt. 663, the court, in its discussion of the decision of the principal case, said : “ The decision was based on the ground, that the sole function of the suit under the statute was to test the validity of the will or wills which had been admitted to probate, and when the alleged testamentary papers were declared invalid and null, it was not competent for the court to proceed in that cause to make any further decree. This was the extent of the decision, and we do not question its soundness. Bnt in the opinion of the court, delivered by Judge Baldwin, it is said, that the jurisdiction of the court in such a case ‘ is merely that of a court of probate, and to be exercised not by the court, but by a jury under its supervision.’ The remark in its broad terms was not necessary to the decision of the question presented. It must be taken in reference to the subj ect-matter ; and although the functions of the court are limited to matters of a probate nature, it by no means follows that those functions are not to be performed by the court acting as a court of equity, and clothed with all the powers of a court of equity, to give and secure the specific relief authorized by the statute. See also, what is said by the same judge in Malone’s Adm’r and Others v. Hobbs and Others, 1 Rob. R. 346, 410. It is very true, that the court is not empowered to give general relief, as in ordinary cases within the jurisdiction of equity tribunals, but it may and should exert its powers to secure the specific relief designed by the statute, and make the remedy provided effectual for the promotion of justice and the prevention of wrong.”

See also, monographic noteon “Issue Out of Chancery” appended to Lavell v. Gold, 25 Gratt. 473.

Same — Probat Proceedings — Conclusiveness of.— The sentence of a probat court while in force, is binding upon all persons and courts, whether the will be of realty, or personalty, or both, and this whether the will be admitted or rejected. Ballow v. Hudson, 13 Gratt. 679, 682, citing the principal case. See also, cases collected in *foot-note*to this case; *foot-note*to Parker v. Brown, 6 Gratt. 554.

‡

The provision of the act of assembly un der which this suit is brought, is as follows: “ When any will shall be exhibited to be proved, the court having j urisdiction as aforesaid, may proceed immediately to receive the probat thereof, and grant a certificate of such probat. If, however, any person shall, within seven years afterwards, appear, and by his or her bill in chancery contest the validity of the will, an issue shall be made up, whether the writing produced be the will of the testator or testatrix or not. which shall be tried by a jury, whose *24verdict shall be final between the parties; saving to the court a power of granting a new trial for good cause as in other trials; but, no such party appearing within that time, the probat shall be forever binding; saving also to infants, *femes covert,*and persons absent from the state, or *non compos mentis,*the like period after the removal of their respective disabilities.” 1 Rev. Code, ch. 104, § 13.

§Issue of Devisavit .Vel Non—Rights of Proponents.

—Upon the i.ssue *devisavit vel non,*the proponents of the will have the affirmative of the issue, and the right to open and conclude .both the evidence and arguments to the jury. Nicholas v. Kershner, 20 W. Va. 259 ; Kerr v. Lunsford, 31 W. Va. 666, 8 S. E. Rep. 496, both citing the principal case as authority. See also, monographic *note*on “Issue Out of Chancery ” appended to Lavell v. Gold, 25 Gratt. 473.

*

The argument of this cause was commenced before the appointment of a reporter. The sketch of *Mr. Daniel’s*argument has been made out from his notes.

*

The reporter is indebted to *Mr. Robinson*for the note of his argument.

BALDWIN, J.

The jurisdiction of a court of probat differs from that of other civil tribunals in this, that its province is not to ascertain and enforce the rights of property, but to establish, preserve and perpetuate some important muniment of title. When that is a testamentary paper, the decision of the probat court must, of necessity, be judicial in its character; inasmuch as the validity of the instrument involves not merely its formal execution, but also the capacitjr, freedom and final action of the testator. In regard to such a subject, it is obvious that the full benefit to the community derivable from the probat forum cannot be enjoyed, unless its adjudications be treated as final and conclusive by the other judicial tribunals.

In England, the probat of wills of personalty is exclusively vested in the ecclesiastical courts: they alone have cognizance of the validity of the instrument; and their decision cannot be questioned in the other courts, whether of common law or equity. When therefore a will has been admitted to probat in the ecclesiastical court, no suit can be successfully prosecuted by persons claiming as distributees, on the supposition of intestacy; the sentence of the probat court being conclusive evidence to the contrary, and unimpeachable in any other forum, either directly or collaterally. A like consequence would follow in England, if the probat jurisdiction ^extended to wills of realtjT. The admission of the will to probat would preclude the heir at law from controverting the validity of the instrument. He could not maintain an action of ejectment to recover the property devised, on the ground of intestacy, nor could he prosecute a bill in equity to set it aside, upon the allegation of fraud, insanity or want of due attestation.

But in England there is no court of pro-bat for wills of realty; and consequently the validity of the instrument must be decided incidentally in controversies concerning the rights of property, claimed under or against it. These controversies must be settled in the appropriate jurisdictions. The title of the heir is in its nature legal, and may be asserted in an action of ejectment; and he cannot go into equity for anjr other purpose than to remove impediments to a full and fair trial at law. If the devisee has the legal title, he may, and the better opinion seems to be, must, in most cases sue at law. But there are various heads of equitable jurisdiction which may enable him to assert his claim in a court of equity. He cannot however obtain relief there, without the verdict of a jury in his favour, upon the issue of devisavit vel non, if such a trial be required by the heir at law.

In Virginia, the probat jurisdiction embraces wills both of realty and personalty. By our act of 1711, directing the manner of granting probats of wills and administration of intestates’ estates, jurisdiction was given to the county courts to hear and determine all causes, matters, suits and controversies testamentary, and to examine and take the proof of wills, and grant administration upon the estates of intestates. It provides that when a will devising lands shall be offered for proof, the court shall appoint a time for proving it, and cause the heir or heirs to be summoned to appear and be present, and to shew forth any thing that may be lawfully alleged against such proof; with a saving in favour of *all persons concerned in interest labouring under disabilities; who were to have libertjT to contest the said proof at an3r time within ten years after their several disabilities should be removed; and at no time after the said ten years. It also gave the like jurisdiction to take the proof of wills and grant administrations to the general court, in certain cases.

The act of 1744, to amend the law for proving wills in the general court and county courts, recites that the proof of wills where lands are devised away from the heir or heirs at law, is attended with inconvenience to the executors and losses in the personal estate; and provides that when wills are exhibited to be proved, it shall be lawful for the courts to proceed immediately to the proof of such wills: but that where lands of the testator shall be devised away from the heir or heirs at law, such proof as to them shall not be binding; but that they shall be summoned in the manner directed by law, and shall be at liberty to contest the validity of such will in the same manner as if this act had never been made. These provisions were incorporated into the revised act of 1748: and it will be seen that the effect of them was to authorize the ex parte probat of wills, both of personalty and realty; but that in regard to the latter, the heir or heirs at law were, notwithstanding, to be summoned, and thereupon to have the privilege of contesting the validity of the will, and requiring a reprobat thereof.

The revised act of 1785, after prescribing *44the general probat jurisdiction of the county, city, corporation and general courts, provides that “when any will shall be exhibited to be proved, the court having jurisdiction as aforesaid may proceed immediately to receive the probat thereof, and grant a certificate of such probat: If however any person interested shall, within seven years afterwards appear, and by his bill in chancery contest the validity of the will, an issue shall be made up,' *whether the writing produced be the will of the testator or not; which shall be tried by a jury, whose verdict shall be final between the parties; saving to the court the power of granting a new trial for good cause, as in other trials; but no such party appearing within that time, the probat shall be forever binding: In all such trials by jury, the certificate of the oath of the witnesses at the time of the first probat, shall be admitted as evidence, to have such weight as the jury shall think it deserves.” The provisions of this act of 1785 are still continued in our code, with a saving in favour of those labouring under disabilities, and an extension of the original probat jurisdiction to the superior courts of law.

The obvious purpose of these provisions is, 1. To recognize the ex parte probat of wills, both of realty and personalty; 2. To extend the privilege of requiring a reprobat, so as to embrace both; 3. To prescribe a period of limitation for such reprobat; 4. To change the citation for reprobat, so as to require it to be of those interested in sustaining the will, instead of those interested in opposing it; 5. To shift the final probat from the court of original probat to the court of chancery, to be there exercised by the instrumentality of a jury; 6. To provide against the loss of testimony in support of the will, which might result from the delay of the final probat, by authorizing, for the consideration of the jury, documentary evidence of the proof at the first probat.

This brings us to the question, whether it is competent for the plaintiffs to prosecute their present suit, not merely for the purpose of contesting the validity of the will, upon the final probat before a jury; but moreover for the purpose of enforcing their claims to the property as heirs and distributees of the decedent.

It is clear from what has been alreadjr said, that if the whole probat jurisdiction had remained in the courts of law, the heirs and distributees of a decedent could not have maintained a bill in equity, to impeach directly the ^validity of a will there admitted to probat; or to bring it into question incidentally by claiming the property thereby disposed of. How then does the court of chancery obtain jurisdiction over the property, by the transfer to that forum of the final probat of the instrument? The only effect of a verdict against the will, upon the issue of devisavit vel non, would be to place the rights of property in the same situation as if the will had never been made. But in that state of things, the remedy of the heirs at law to recover the realty would be an action of ejectment: and in regard to the personalty, the distributees would have no right to recover it. The title and right of action in regard to that belongs to the administrator, first for payment of debts, and then for distribution of the surplus amongst the next of kin. It is true, there are cases in which the distributees may obtain relief in equity against a stranger, who is about to waste or eloign chattels of the estate in his possession, before a grant of administration can be obtained. But that equity can have no application to a case in which there is a responsible executor, who has duly qualified and given security, though his powers may be liable to future revocation.

The most that can be said in behalf of the ulterior relief sought by the plaintiffs is, that the court of chancery having obtained jurisdiction of the subject, for the purpose of deciding upon the validity of the instrument, it ought to go on to administer complete justice between the parties, instead of turning them round to another action, whether in the same or a different forum. But this is founded upon the supposition, that the court of chancery has obtained jurisdiction of the subject as a court of equity. Such, however, is not the fact: its jurisdiction is merely that of a court of probat; and to be exercised not by the court, but by a jury under its supervision ; and for the decision of a common law issue affecting the legal rights of the parties.

^Besides, the ulterior jurisdiction claimed for the court of chancery is not founded upon the circumstances existing at the institution of the suit, but is merely prospective and contingent, and of course supplemental. It must therefore be asserted in a new proceeding, whether an original or supplemental bill is foreign, to the present question. It is in some respects impossible, and in others extremely difficult, to frame the probat bill, so as to adapt it to the new aspect of the case which will be presented by the exercise of the probat jurisdiction. If the will should be vacated, an administrator of the personal estate must be first brought into existence before he can be brought into court. The real estate may be in the possession of the defendants claiming as devisees, or in the possession of the plaintiffs claiming as heirs at law; or a part in the possession of the defendants, and a part in the possession of the plaintiffs. The possession of the defendants may continue adversary, notwithstanding the vacation of the will; for they may deduce another title from the decedent in his lifetime, or a paramount title from a stranger. Or the possession may become social in both defendants and plaintiffs, as coheirs of the decedent, and require a partition, with an account of rents and profits and advancements.

How can all such matter be introduced by anticipation into the probat bill? And yet *45it must be introduced into the cause, in some form or shape, with a view to the ulterior relief; and that not merely at the election of the plaintiffs, for if the defendants have interests notwithstanding the vacation of the will, they will have an equal right to assert them. How, I ask, can such cumbrous and expensive, and in one event utterly useless and idle machinery, be properly brought into a proceeding intended by the legislature to present, upon a final probat, the simple and naked question, “whether the writing produced be the will of the testator or not?” And what are the considerations of policy to recommend *it? What expense will be avoided, what delay prevented, what inconvenience removed? Hone that I can conceive. It can only lead to a protracted and perplexed litigation, requiring a change of pleadings, and it may be, of the relative attitude of parties: whereas a simple sentence of the court, declaring the result of the verdict, puts an end to the original controversy; leaving the parties to an amicable adjustment of their respective interests in the subject, or to the plain and appropriate remedies, at law or in equity, suggested by then existing circumstances.

It seems to me, therefore, that the circuit court did not err in dismissing, by its interlocutory decree, the bill of the plaintiffs, as to the defendant Heigh in his individual right and capacity; he having, prior to the institution of the suit, released the devises and bequests in his favour contained in the testamentary papers propounded : but that the decree ought to have gone further, and dismissed so much of the bill as seeks relief beyond the vacation of those instruments. As to the costs awarded to the defendant Heigh, incurred by him in his individual right and capacity, I do not perceive how it is practicable to discriminate between costs so incurred, and costs incurred by him in his character of executor. In fact they are identically the same; and it being manifest that the court did not intend to give him costs in his representative character, I caiinot but regard so much of the decree as relates to his costs as merely nugatory.

We are next to consider whether the duty prescribed by the statute of making up an issue for the final probat of the will, has been correctly performed by the interlocutory decree in question. And upon this subject we need not look much further than the terms of the statute. It directs that an issue shall be made up, and specifies what the issue shall be, to wit: “whether the writing produced be the will of the testator or not;” *which is the issue that the jury are to be sworn to try. This is the substance of the matter, and any thing more is nothing but form. Whatever route may be taken must inevitably terminate at this point. How this is the very issue which has been made up; and whether by the hands of the court, or of a master in its sendee, or by the elaboration of counsel through the details of special pleading, I regard as wholly immaterial. Still the issue has been made up, and it is the precise issue required by law. We may, if w'e choose, look into the books of practice, to ascertain the mode of making up such an issue in the English chancery; but that is more a matter of curiosity than utility, for there they have no statute on the subject, and we must at last come back to the true construction of our own.

The court, it is true, might in its discretion have indulged the counsel concerned in the circuity of feigned (though with us most usually supposed) common law jfleadings; but no advantage could have been gained by professional skill and dexterity in that mode of proceeding; for still the issue, however formal, must have been settled, as in the English practice, by agreement of the parties, or the authority of the court; in fact, the true point of controversy in the court below was neither the form nor the substance, but the affirmative of the issue; each party seeking to be plaintiffs therein, in order to obtain the advantage of opening and concluding the cause before the jury. The court, in my opinion, properly awarded the affirmative to the appellees, they being the propounders of the will, and having the burthen of maintaining not onty the due execution thereof, but the capacity, freedom and final action of the testator, and the continued validity of the instrument in all resoects. Whatever formal affirmatives may be arrayed by the appellants against the proposition incumbent on the appellees, that the writings produced are the true last will and testament of the testator, the}' do in substance *only negative the presumptions in law, or proofs in fact of the requisites to the validity of the instrument.

As to the defendant Henry St. George Tucker, I think the interlocutory decree very properly permits him to sustain either side of the issue, at his election; thereby adopting the principle of the English practice, by which a defendant in the cause who has conflicting interests, and therefore declines to become a party in the issue, is allowed to attend the trial, and is held bound by the result.

The remaining objection to the decree taken by the appellants is, that it directs the issue to be tried on the chancery, instead of the common law side of the court. This question is, I think, unaffected by the present union of the two jurisdictions in the same court, inasmuch as they are in nowise blended; and it ought to receive the same consideration as if they had never been so united. The statute of wills we have been considering is silent, it will be seen, in relation to the forum in which the required issue shall be tried; and if the question turned upon the meaning of that statute alone, the inference would seem to be that the forum was to be in the discretion of the chancellor, or, if not so, that he was of necessity to be confined to his own. *46But I think the question is to be determined by another statutory provision, to be found in the 47th section of the revised act of 1819, concerning the superior courts of chancery, which enacts that “the said courts in their discretion, may direct an issue to be tried whenever it shall be judged necessary, either in those courts, or in any other courts whatsoever, as justice or convenience to the parties may require.” Now, I presume, it will hardly be supposed that the authority here given in relation to the forum for the trial of an issue is confined to those cases in which the court has a discretion whether an issue shall be directed, to the exclusion of others in which *'the law has exercised its own discretion, but without designating where the issue shall be tried. Such surely is not the spirit of the act, which was obviously intended to embrace in the discretion as to the place of trial all issues lawfully directed by the chancellor, whether dictated by his own judgment or the mandate of the law.

There is, moreover, no incongruity or inconvenience in having the trial of the issue at the chancery bar. The equitable becomes for the occasion a legal forum, and the' proceedings are according to the course of the common law. In practice, the mode of saving questions decided by the judge during the trial, is the same as in common law actions, to wit, by bill of exceptions : but there is no statutory remedy in case the judge should refuse to allow an exception. This, however, is equally true, whether the issue be tried in a court of common law, or a court of chancery; for the Stat. of Westm. 2, 13 Edw. 1, ch. 31, adopted into our code, applies only to common law actions, and not to mere issues directed by a chancellor, in which no judgment is rendered upon the verdict, but the verdict merely certified for the action of the chancellor thereupon in the chancery cause. Errors committed on the trial of the issue cannot be reached directly by an appellate forum, but must form the subject of a motion to the chancellor, in the chancery cause, for a new trial; and if improperly refused by him, an appeal lies from his decree. In common law actions, if the judge should refuse to seal a true bill of exceptions, the remedy is by complaint to a higher court, and a writ founded on the statute. But such refusal on the trial of an issue out of chancery would be matter for a motion to the chancellor for a new trial, and if refused, for an appeal from his decision.

My opinion, therefore, is, that there is no error in the decree of the circuit court to the prejudice of the appellants: and we are now to enquire whether there be any requiring correction to the prejudice of the appellees.

*In the first place, did the court err in refusing a direction to permit the defendant Leigh to be examined as a witness in; behalf of the appellees, on the trial of the issue, and referring that question to the decision of the judge who should preside at that trial? This involves the consideration of the defendant Leigh’s competency as a witness to sustain the validity of the will.

The rules governing the admission and exclusion of evidence are drawn from considerations of expediency and policy, in the investigation of controversies, with a view to the attainment of truth. The incompetency of witnesses therefore is founded upon a strong probability, arising from the situation in which they are placed, that they will not tell the truth, and that their testimony will tend to establish -what is false. Now, a rule of incompetency to be of any value must be fixed and certain, and yet being based only upon probability, its beneficial operation must of necessity, in any given case, be more or less uncertain. The attempt to exclude all witnesses, liable, from their relation to the subject or the parties, to improper bias, would break up the fountains of justice; and therefore the principle of exclusion must, in the nature of things, be confined within narrow limits. Our law recognizes none of a relative character, except that of a pecuniary interest in the result of the controversy; and as there can be no graduation of the amount, its effect upon the question of cortipetency must be the same, whether it be great or small. And yet it is obvious that a small, or even great pecuniary interest, must often have a less tendency to improper bias than other circumstances, appealing to the affections or passions of the witness. Nor can it be denied that when the rejection of a witness occasions darkness instead of light, the mischief is irreparable; whereas his credit, when received, is fully open to consideration, discussion and evidence. Such reflections, doubtless, have led the courts of late years to restrain Objections to competency within the narrowest bounds practicable, consistently with a due respect to authority, and the preservation of a proper decorum in the administration of justice.

To render a witness incompetent, his interest in the result of the cause must be direct and certain; not uncertain, contingent or conjectural. A liability to actions as a consequence of the decision is nothing, unless he be moreover liable to a recovery, which liability must be apparent, and not assumed upon a supposititious state of facts. His interest that is to be affected must be personal, or if representative, must be asserted by him as the owner of the estate or subject against an adversary interest.

An executor, in his transactions as such with the world, is the representative and legal owner of his testator’s personal estate, responsible for its due administration, identified with its interests, and bound to assert and defend them. He cannot be a witness for himself in controversies with strangers affecting the interests thus vested in him. Nor when he is called to account as a trustee, by his cestuis que trust, can he testify against them in relation to the *47measure or extent of his responsibility. But what good objection can there be to his competency amongst the cestuis que trust themselves, or between two classes of persons, each claiming the interests rightfully belonging to cestuis que trust? The estate which he represents is in nowise interested in such a contest. Nor has he himself any personal interest in it. The question is, not for what or for how much, but to whom he shall account, and that in a pecuniary point of view must be to him a matter of perfect indifference.

In the case before us, judge Leigh is precisely in the situation just noticed. The appellants claim as the distributees and heirs at law of Mr. Randolph: the appellees as his legatees and devisees. The witness, as the *duly qualified and acting executor of the decedent, has taken possession of the personal estate, and made some progress in its administration. And now, in this controversy between those claiming against, and those claiming under the will, he is offered as a witness for the latter. Representative interest he can have none against either party. Where is his personal interest? If the will be set aside, he will have to surrender the personal estate in his hands to his successor, and account for his administration; and if it be confirmed, he will ultimately have to perform the like duty.

It is urged that the measure and extent of his accountability would be different in the two cases: but I can perceive no difference. His acts as executor would not be rendered unlawful by a subsequent vacation of the will. On that subject, I think it would be a waste of time to go into a dismission of the English authorities. We need no better guide than our own statute law, which seems to me free from all difficulty. The will was duly admitted to probat by the competent jurisdiction, which judicially declared it to be the last will and testament of the alleged testator. The executor therein named was recognized as such by that tribunal, took the oath of office, and gave bond and security for the faithful discharge of its duties. Though a verdict and sentence against the validity of the will, in the present proceeding, will terminate his authority ; yet until then he will have acted under a lawful authority; and I consider his intermediate acts valid, as much so as those of any other executor. What responsibilities he might have incurred, by improper conduct in procuring the execution of the will, or by payment of legacies after notice that its validity would be disputed, are questions not presented by the record in the present case. He surely could not be entitled in any event, as suggested, to retain the hires of the emancipated slaves accruing during their continuance in bondage.

*As to his losing the office of executor by a vacation of the will, it is no loss in the eye of the law, which regards it, not as a lucrative employment, but as an* onerous engagement, accepted from different considerations than pecuniary emolument. His commissions are designed merely to reimburse him for his labour and expenses ; and if he should lose them prospectively, he will at the same time be relieved from the services and responsibilities for which they are allowable. In regard to those already accrued, together with his legal costs and reasonable charges occasioned by the present controversy, I cannot doubt, whatever may be the result, that he will have a right to retain them out of the estate, except so far in relation to costs as they may be recovered against the complainants. As to the costs incurred by the latter, they are not, under the circumstances, recoverable against him de bonis propriis.

Upon this question of judge Leigh’s competency, numerous authorities were cited in the learned and able discussion at the bar. It would be tedious to notice them particularly, but I deem it proper to make a few general remarks upon the principles which they involve, in addition to what has been already said.

It is well settled that in actions at law a party to the record cannot be examined as a witness against his adversary, for though his interest in the subject of controversy may be merely formal, yet he has a substantial interest in regard to the costs. This is equally true, whether his testimony be offered in behalf of himself, or of an associate; for the interest of coplaintiffs and codefendants is at law strictly joint. But the rule is not altogether free from exception. There may be cases, however rare, in which a party to the record has no interest whatever, either in the subject of controversy, or the costs of the action. In such cases, the reason for his incompetency ceases, and he may be examined. The reasoning, rather than the decision of the supreme court *of the United States in Stean v. Bowman, 13 Pet. 219, is opposed to this idea. But with great deference, it seems to me that some of the views of the court in that case are at war with established principles, and tend to confound objections to the competency with those which go only to the credit of a witness. ' The true doctrine is, I think, correctly laid down by lord chief justice* Tindall, in Worrell v. Jones, 20 E. C. L. R. 177, in which he says: No case has been cited, nor can any be found, in which a witness has been refused upon the objection in the abstract, that he was a party to the suit. On the contrary, many have been brought forward in which parties to the suit who have suffered judgment by default, have been admitted as witnesses against their own interest; and the only enquiry seems to have been in a majority of the cases, whether the party called was interested in the event or not, and the admission or rejection of the witness has depended on the result of this enquiry.

In equity, though the interest of coplaintiffs is joint, that of codefendants is not always so; on the contrary it is sometimes *48conflicting, and one or more of the defendants may not be in hostility with the plaintiffs. A plaintiff, therefore, may examine a defendant, or one defendant a codefendant, if the witness be not substantially interested in the result. The costs in equity being discretionary with the court, it is extremely difficult, if not impracticable, to attribute to a party a fixed and determinate interest on that head alone. Accordingly, though the rule of incompetency, because of a liability for costs, is generally recognized, there is some confusion and conflict in the authorities bearing upon its application. Various criteria have been resorted to, such as the charges in the bill, the evidence in the cause, the participation in an alleged fraud or combination, the liability to a decree, &c. These need not be further noticed in a case like this, in which it is, morally impossible, according *to the shewing of the complainants, that the witness can be subjected to costs. And if he be incompetent, it must be because of his interest in the subject.

In England, until the statute 1 Will. 4, ch. 40, the executor, in default of a residuary legatee, was entitled to the surplus, unless the testator’s intent to the contrary appeared: an interest which of course rendered him incompetent in cases involving the validity of the will. When not entitled to the surplus, he is a trustee for the next of kin, or residuary legatee, as the case may be; and then, and so when á devisee of property, real or personal, for the benefit of others, he is called an executor in trust. Such is the character with which he is clothed in the present case: and his incompetency, if it exists, arises altogether out of his having accepted and partly performed the trust; there being no special circumstances in the case, and. he having released all interests in the estate given him by the will. Now, the question of the competency of an executor in trust, is, as already shewn, widely different, where the controversy is between the estate which he represents, and others claiming adversely to that estate; and where the controversy is between persons claiming, not adversely to the estate, but conflicting interests therein. So, too, there is a wide difference between the latter case, and one in which the cestuis que trust of the estate call the executor to an account, and the controversy is to the amount which they ought to recover. Eet us first notice the doctrine applicable to controversies with the estate alone, or with the executor alone.

It is laid down broadly in the books, that in actions at law an executor in trust is a competent witness as to the trust estate, and may 'prove the sanity of the testator: but this must be taken in reference to controversies in which he is not a party; for if he is a party to the record, he is usually disqualified by his interest in the costs, if not in the subject; and though not a party to *the record, yet if the recovery or defence is to enure to him as executor in trust, I presume he is incompetent, as the' substantial, though - not the formal party.

In equity, it has been in some cases said, and in others held, that though a trustee is, an executor in trust is not, a competent witness to increase the assets of the estate, though sued for, or sought to be subjected by another; and that there is a difference between the rules of law and equity in this respect. Croft v. Pyke, 3 P. W. 180; Bellew v. Russel, 1 Ball & Beat. 99; Mulvany v. Dillon, 1 Ball & Beat. 409. If this be so, it presents the strange anomaly of a rule excluding light, more rigorous in equity than at law. In Fotherby v. Pate, 3 Atk. 604, lord Hardwicke held, in a suit brought for an account of the assets, against an executor, and the administratrix durante minore éetate who had not accounted with the executor, that the administratrix could not be a witness for the executor; and adverts, though rather disapprovingly, to the supposed distinction in equity, not existing at law, between a trustee and an executor in trust. These authorities-, it will be seen, have no application to a case like the present, in which the question is not as to the amount of assets, nor the accountability of the executor therefor.

We come now to the doctrine in controversies between conflicting claimants of the estate itself, each deriving title from the, decedent. And here the appellants have been unable to produce any authority to shew that an executor in trust is incompetent, by reason of his interest in the subject. On the other hand, there is strong authority in favour of the appellees.

The case of Lowe v. Joliffe, 1 W. Bl. 365; I regard as directly in point. That was an issue devisavit vel non directed out of chancery. The executor in trust, who drew the will, was examined as a witness to prove the sanity of the testator, though objected to 1st. as being an executor in trust, and so liable to actions; and *2dly. as having, acted under the trust. He was authorized by the will to sell real estate, and had actually sold part of it, by which he became liable to answer in damages to the purchaser, if the will was set aside. The court overruled the objection. Eord Mansfield said there was no difference between an executor in trust and another trustee, and that his being liable to actions made no difference. He was examined, and with the aid of his testimony the will was established, against the positive evidence of the subscribing witnesses, and a dozen others, all of whom were grossly and wilfully perjured. The case presented the naked question, whether the executor in trust was rendered incompetent by reason of his interest in-the subject, without being embarrassed by the form of the proceeding, or an objection on the ground of an interest in the costs. It arose, as it arises here, on a common law issue, but not in a common law action, inasmuch as no judgment could be rendered in the forum where the trial was had. -The authority of the case is not *49at all shaken by the decisions cited on the part of the appellants.

The case in Massachusetts of Sears v. Dillingham, 12 Mass. R. 368, was expressly founded upon the liability of the executor for the costs of the proceeding, under a statute of that state. The case in Pennsylvania of Vansant v. Boiliau, 1 Binn. 444, turned also upon the like liability for costs, occasioned by the form of the proceeding ; it being the province of the court in v’hich the issue devisavit vel non was tried, to render judgment upon the verdict. And a venire de novo being awarded by the appellate court, it was there suggested by one of the judges, that the court below ought so to modify the issue as to remove the objection to the witness, in order that “justice should not be entangled in a net of forms.” The case in South Carolina of Vinyard v. Brown, 4 M’Cord 24, was very much like the one before us; but the grounds of the decision deprive it of *all weight. The court there went partly’ upon the idea of an interest of the witness in the costs, but chiefly upon a supposed rule of policy excluding a party in a cause as incompetent, under all possible circumstances.

The ecclesiastical courts, it is true, hold an executor who voluntarily propounds a will an incompetent witness in the probat cause ; but they treat him as liable for costs, unless under special circumstances. With us, if an executor propounds a will in the original court of probat, which is rejected as invalid, the general rule is that costs will not be awarded against him. Spencer v. Moore, 4 Call 423; Wilcox v. Rootes, 1 Wash. 140. Whether he would be a competent witness on such propounding is a question which does not arise in the present case. The question is a very different one, when he is brought into court, with those interested in the estate under the will, upon a bill filed for final probat.

My opinion is that judge Leigh, so far as at present disclosed by the record, is a competent witness for either party on the trial of the issue. I do not know that, as a general rule, I -would be willing to reverse a decree upon the solitary ground, that the chancellor had referred the question of competency to the judge who shall preside on the trial of the issue, instead of directing the examination of the witness. But, under the peculiar circumstances of this case, I think he ought to have given the direction ; and that the decree ought to be corrected in that particular.

Another objection to the decree made by the appellees, is its omission to direct the deposition of judge Leigh, given on the probat in the general court, to be read on the trial of the issue, in the event of his death or inability to attend the trial. But that involves a grave question as to the admissibility of such evidence, which I do not deem it incumbent on us now to decide ; inasmuch as its decision in the cause may be rendered unnecessary, not only by the personal attendance of the witness on *the trial, but by the precaution on the part of the appellees of taking his deposition de bene esse'.

The remaining objection to the decree, urged by the appellees’ counsel, is that the complainants ought to have been required to make the slaves emancipated by the will, defendants in the cause. This objection I deem clearly untenable. The race of people to which those persons belong is, by our laws, prima facie in a state of bondage here, and none but physical means can be necessary to enforce the rights of owners. The humanity of the law has given them, when entitled to freedom, the right to sue in forma pauperis; and has surrounded this privilege with every precaution and safeguard. It moreover permits them to resort, in the character of petitioners or plaintiffs, to the proper tribunals, for the establishment of their documentaiy evidence of title. The capacity of being sued on the question of their condition is incongruous therewith; would confer no privilege or benefit upon them; would derogate from the title of the master, and occasion much inconvenience to estates, and in the administration of justice.

The other judges concurred in the opinion of Baldwin, J., and the cause was remanded with instructions accordingly.