#### The Executors and Devisees of Archibald M’Craine, v. Neil Clarke and Catharine his wife.

J>From Cumberland.

l-.xr’s. — On the trial of íin issue *d¿visavit vel non,*the declarations of executors or dev .sees named in the will are evidence against them, if they be parties of record to the suit or issue.

Will. — A contract for the sale of land, contained in a devise previously-made, which contract is not executed by reason of the death of the owner or devisor, before the day appointed, does not operate as a revocation of the devise.

Archibald M’Craine made bis will and devised a tract to some of the Plaintiffs, and appointed the others his executors, who offered the will for probate. Neil Clarke- and wife, (the latter of whom is one of the heirs at law and next of kin of M’Craine,) opposed the probate, and an issue of *devisavit vel non*was made up. Upon the trial of this issue, the Defendants offered in evidence the declarations of one of the excutors and some of the devi-sees, who were parties to the issue ; and the court refused to receive the e\ idence. — They then proved, that after the making of the w ill, M’Craine contracted to sell a tract of land, part of the real estates devised in and by the will, .for a price agreed upon, and was to convey on a particular day; but he died before the day arrived and did not *318convey : and they insisted that this contract was, in law, a revocation of the will. The court instructed the jury otherwise, and they found that M’Crame did devise, See. ^ motion was made for a new trial upon the ground that the court had erred in both of the above points.

RustiN, Judge,

delivered the opinion of the Court:

Upon the last point, it is clear that the Court informed the jury correctly. What may be the effect of such a contract in equity, upon the particular devisee of the land sold is another question. The devisee mayor may not be a trustee for the purchaser, according to circumstances' *‘,*and the price of the land may or may not be a part of the testator’s personal estate for the benefit of bis residuary legatee or next of kin, also according to circumstances : But we have nothing to do with either of those questions now. The point in dispute is, whether there be a revocation of the will at law ? and that there is not, is proved by many authorities, (a) Even if the lands had been actually conveyed, the will would not have been thereby *revoked,*properly speaking, so as to prevent its probate; the only effect would be, an ademption of the devise of the particular lands conveyed.

Upon the point of evidence, however, the court are of' opinion the Judge erred, in *refusing to*admit the declarations of the Executors and devisees. The issue of *devi~ savit vel non*is in the nature of a suit, and the executors and devisees are regularly parties to it. Their declarations ought to be received in evidence against themselves. We cannot see a legal ground to reject them. We cannot in a court of law, look to the interests of third persons not before us : we cannot here know the executor as a trustee *;*all w'e can know, is that be is before us as a party to the suit. The rule is universal, that whatsoever a party says or does, shall be evidence against him, to be left to the jury. It is competent evidence ; the jury *319Can and will give it its weight, according to the manner of obtaining the confession, or the relative interest of him, whose admissions are proved. A solitary exception to this rule cannot well be imagined. The rule for a new trial must therefore be made absolute.

(a)

 Ryder *vs.*Wager, 2 P. Wms.332. Cotton *vs*Sayer, ibid.623.