#### ELSIE MAE PAUL SANDERSON, ZELMA PAUL BARDO, DEBORAH SUTTON PAUL and LILLIAN PAUL v. HORACE LAYTON PAUL and Wife, MRS. HORACE LAYTON PAUL.

(Filed 1 February, 1952.)

1. Evidence § 32—

In order for testimony of transactions or communications witli a decedent to be incompetent it is necessary that the witness (1) be a party or interested in the event, (2) that his testimony relate to a personal transaction or communication with decedent, (3) that the testimony be against the deceased’s personal representative or person deriving title through or under the deceased, (4) that the witness be testifying in his own behalf or interest. G.S. 8-51.

2. Same—

A witness is competent to testify against his interest in regard to a transaction or communication with decedent, and where such witness has alternative interests the competency of the testimony depends upon which interest predominates or is the more immediately valuable.

3. Same—

The interest which affects the competency of a witness under G.S. 8-51 is a present pecuniary interest existing at the time the witness is examined, and mere sentimental reasons or personal predilections does not affect the question of qualification.

4. Same—

The party asserting that a witness is disqualified under G.S. 8-51 to testify as to transactions or communications with a decedent has the burden of showing the disqualifying interest of the witness.

*575. Trial § 19—

The general rule is tliat it is tlae province oí the judge to determine preliminary questions of fact upon which the admissibility of evidence depends.

6. Evidence § 32—

As grantee in the deed attacked, the witness would take a one-half interest, defeasible upon her death without issue; as heir at law of grantor she would take a one-fourth undivided interest in the land in fee, subject to the dower right of grantor’s widow. *Held:*It is error to exclude her testimony of transactions or communications with deceased grantor offered for the purpose of attacking the deed for undue influence, without evidence or a finding as to which interest of the witness is of greater pecuniary value.

7. Appeal and Error § 40i—

Where testimony of a witness is excluded without proper predicate, and decision of the question of competency of the testimony materially affects the correctness of the judgment of nonsuit, the judgment will be reversed.

Appeal by plaintiffs from *Williams, J.,*May Term, 1951, of RobesoN.

Reversed.

Plaintiffs instituted tbis action to set aside a deed executed by Henry Lutber Paul to Lillian and Horace Paul. Tbe deed was attacked on tbe ground of fraud and undue influence alleged to bave been exerted by tbe grantees.

Tbe deed in question was executed by Henry Lutber Paul, tben a widower, 5 August, 1943, and purported to convey described land to bis children Lillian and Horace Paul, witb provision that if either died without issue the property conveyed should pass to tbe other. Tbe grantor reserved a life estate in tbe land. On 11 September, 1943, Henry Lutber Paul married Deborah Sutton. Tbe grantor died in 1949 leaving him surviving bis widow and four children by a former marriage, tbe plaintiffs Elsie Mae Sanderson, Zelma Bardo and Lillian Paul, and tbe defendant Horace Paul.

It was alleged in the complaint that after tbe death of bis first wife Henry Lutber Paul wished to marry Deborah Sutton, but Lillian and Horace, who were living witb him in tbe home, strenuously objected, and by their continued nagging and harassment caused bis mind and will to be weakened to tbe extent that bis will was subverted to that of Lillian and Hora'ce, and to relieve himself of tbis unbearable situation be yielded to their influence and to their suggestion that if be would sign a deed to them for tbe land they would cease their conduct; that tbe deed be tben executed was procured by tbe undue influence of Lillian and Horace, and reflects their will rather than bis own; and that be was thereby caused to execute a deed which be would not otherwise bave done.

*58After the institution of this action Lillian Paul, who was originally .served with summons as a defendant, expressed the view that she and Horace had exerted undue influence on their father, and that the deed should be set aside. On motion of defendant Horace Paul the court •ordered that she be made party plaintiff and that her name be stricken from the record as a defendant.

On the trial plaintiffs offered Lillian Paul as a witness to show certain transactions and communications between herself and her father, the decedent, tending to support the allegations of undue influence set out in the complaint. Defendant’s objection to this evidence was sustained and her testimony in so far as it related to personal transactions and communications with decedent was excluded.

At the close of plaintiffs’ evidence motion for judgment of nonsuit was allowed, and from judgment dismissing the action plaintiffs appealed.

*McKinnon <& McKinnon for plaintiffs, Elsie Mae Sanderson, Zelma Bardo, and Deborah Sutton Paul.*

*McLean & Stacy for plaintiff Lillian Paul.*

*E. E. Page and Parser, McIntyre & Henry for defendants, appellees.*

DeviN, C. J.

The judgment of nonsuit rendered by the court below was predicated upon the ruling that Lillian Paul, party plaintiff, was ■disqualified by the statute G.S. 8-51 to testify in her own interest concerning personal transactions or communications between herself and the decedent, against the defendant Horace Paul who is claiming under the deed of the decedent.

This statute, which is a recodification of sec. 590 of the Code, provides in brief that in the trial of an action a party, or person interested in the ■event, shall not be examined as a witness in his own behalf or interest, against the personal representative of a deceased person or a person deriving his title or interest through or under a deceased person, concerning a personal transaction or communication between the witness and the deceased person, with certain exceptions not pertinent here. G.S. 8-51.

This statute in its application to a great variety of circumstances and situations has been many times considered by this Court. In *Bunn v. Todd,*107 N.C. 266, 11 S.E. 1043, *Chief Justice Clark*in an opinion written in 1890 analyzed the provisions and effect of this statute, and in .a recent opinion written for the Court by *Justice Ervin*in *Peek v. Shook,*233 N.C. 259, 63 S.E. 2d 542, a succinct resume of the provisions of the •statute was aptly stated. See also *Sprinkle v. Ponder,*233 N.C. 312, 64 S.E. 2d 171.

In order to render the testimony of a witness incompetent under this statute it must appear, (1) that he is a party, or interested in the event, *59(2) that bis testimony relates to a personal transaction or communication witb tbe deceased person, (3) against bis personal representative or a person deriving title or interest through or under tbe deceased, and (4) it must also appear that be is testifying in bis own behalf or interest. Tbe provision in tbe present statute last above referred to was added by sec. 590 of tbe Code of 1883 to sec. 343 of tbe original Code of Civil Procedure. Hence, when tbe witness is testifying not in bis own behalf or interest, but against bis interest, be is not disqualified by tbe statute. *Tredwell v. Graham,*88 N.C. 208; *Bunn v. Todd,*107 N.C. 266, 11 S.E. 1043; *In re Worth’s Will,*129 N.C. 223, 39 S.E. 956; *In re Fowler’s Will,*159 N.C. 203, 74 S.E. 117; *Seals v. Seals,*165 N.C. 409, 81 S.E. 613; *Sorrell v. McGhee,*178 N.C. 279, 100 S.E. 434; *Price v. Edwards,*178 N.C. 493, 101 S.E. 33; *Peek v. Shook,*233 N.C. 259, 63 S.E. 2d 542; Stansbury on Ev., sec. 71. *“A*witness may always testify against bis own interest, regardless of tbe subject matter of bis testimony or bis relation to tbe parties.” Stansbury, sec. 71. “It is not within tbe spirit or tbe letter of tbe statute, as bis own interest is supposed to be a sufficient protection for tbe opposite party against false or fabricated testimony.” *Seals v. Seals, supra.*Courts are not disposed to extend tbe disqualification of a witness under tbe statute to those not included in its express terms. 58 A.J. 177.

In tbe case at bar tbe witness Lillian Paul was a party plaintiff. Her excluded testimony related to personal transactions and communications between herself and tbe decedent, and was against defendant Horace Paul who claimed title under tbe deed of decedent. But one other element was necessary to complete her disqualification. Was she testifying in her own interest, or was she testifying against her interest? If she was testifying against her interest her testimony was competent.

Tbe testimony of this witness was offered for tbe purpose of attacking tbe validity of tbe deed of Henry Luther Paul. Should tbe attack prove successful and the deed be set aside, she would become entitled as heir of tbe decedent to one-fourth undivided interest in tbe land in fee, subject to tbe dower right of tbe widow, who is 48 years of age. On tbe other band, if tbe deed be upheld, under tbe deed she would be entitled to one-half undivided interest in tbe land, but her title would be a defeasible fee, subject to be divested should she die without children. Her tenure, however, would in any event continue as long as she lived. So that under tbe deed her interest would be equivalent to that of an unencumbered life estate. She is 41 years of age and unmarried. Having an alternative interest it would seem to follow that tbe competency of her testimony must depend on which interest predominated. This Court several times has bad a similar situation presented in ruling on tbe competency of testimony under sec. 590 of tbe Code, now G.S. 8-51.

*60In *In re Fowler’s Will,*159 N.C. 203, 74 S.E. 117, tbe matter being beard was a caveat to a will on tbe ground of fraud and undue influence. Tbe witness Rena Jackson was an beir and also a devisee. Sbe was offered to prove transactions and communications with tbe deceased, and against tbe will. It was admitted, however, that sbe would receive less as an beir, if tbe will was set aside, than sbe would if it was sustained. Tbe Court said sbe testified against ber interest and was not disqualified by tbe statute.

*In re Worth’s Will,*129 N.C. 223, 39 S.E. 956, was also a case involving a caveat to a will. Tbe caveators offered as a witness Mrs. Crocker for tbe purpose of sbowing personal transactions and communications with deceased, and against tbe will wbicb was dated in 1899. In tbe will sbe was given a legacy of $2,000. It appeared, however, that there bad been a previously executed will in wbicb also sbe was a legatee but tbe amount in tbe former will did not appear. There was no evidence that tbe former will bad been revoked. This Court reversed tbe ruling of tbe lower court and held she was testifying against ber interest and that ber testimony was competent, as tbe statute excluded testimony only when tbe witness was testifying in bis own behalf. In that case it was urged that as a legatee in both wills without proof of tbe amount in tbe former will ber testimony should have been excluded in absence of proof that tbe legacy in former will was smaller. But tbe Court declared “tbe witness should have been permitted to testify, if tbe legacy in tbe former will did not disqualify ber. We think for it to have that effect it was necessary that evidence should have been adduced going to show that tbe legacy in tbe former will was larger than that given to tbe witness in tbe script of 1899 and that was not done.”

In *Weinstein v. Patrick,*75 N.C. 344, tbe plaintiff sued tbe administrator of a deceased grantor and others to set aside an alleged fraudulent conveyance. Tbe grantee in tbe alleged fraudulent deed, and who bad reconveyed to another, was offered as a witness by plaintiff to show transactions and communications with the deceased, against tbe validity of tbe deed. The grantee was also a creditor of tbe estate. It was held tbe grantee’s testimony should have been excluded because as a creditor, if tbe deed was set aside, be would get bis debt and would be testifying in bis own interest. It was said in tbe opinion by *Justice Beads*that while this witness in bis conveyance bad warranted tbe title, so that to that extent bis interest would be in support of tbe deed, “we do not know on wbicb side bis interest predominates.”

It seems therefore to determine tbe competency of a witness who has a dual or alternative interest in tbe event of tbe action, tbe Court must decide wbicb of tbe two interests was tbe more immediately valuable. *61The interest which determines the competency of a witness under the statute is a present direct pecuniary interest. *Burton v. Styers,*210 N.C. 230, 186 S.E. 248; *Helsabeck v. Doub,*167 N.C. 205, 83 S.E. 241. It is a substantial pecuniary interest in the result. *Jones v. Emory,*115 N.C. 158, 20 S.E. 206; *Vannoy v. Stafford,*209 N.C. 748, 184 S.E. 482; *Allen v. Allen,*213 N.C. 264, 195 S.E. 801. The interest which affects the competency of the witness must be a present interest, a legal pecuniary interest existing at the time the witness is examined. *Isler v. Dewey,*67 N.C. 93. A mere sentimental interest or consideration or preference for one party as against the other, not based on some direct pecuniary interest of value, will not affect the question of the qualification of the witness. *Jones v. Emory,*115 N.C. 158, 20 S.E. 206; *Sutton v. Walters,*118 N.C. 495, 24 S.E. 357; *Ins. Co. v. Woolen Mills,*172 N.C. 534, 90 S.E. 574; *Coward v. Coward,*216 N.C. 506 (510), 5 S.E. 2d 537.

To determine this question, the rental value or annual income from the land, and the present market value of the land, are material factors. G.S. 8-46; G.S. 8-47. *Thompson v. Avery Co.,*216 N.C. 405 (409), 5 S.E. 2d 146. No evidence on those points was offered. The burden was not upon the plaintiffs to offer evidence to show that the witness was competent. The general rule established by G.S. 8-49 and 8-50 is that no person offered as a witness shall be excluded on account of interest or because a party to the action, except as otherwise provided. Hence, it was incumbent upon one who challenged the competency of the witness to show disqualification. Here, no evidence was offered to show that the value of the interest the witness would take as heir was greater than that conveyed by the deed, and that she was therefore testifying in her own interest. *In re Worth’s Will, supra.*

The preliminary inquiry into the facts to determine whether the witness was excluded by the statute was one for the judge. His finding on this preliminary question based on the evidence heard by him would determine whether or not her testimony as to personal transactions and communications with deceased should be permitted to go to the jury. The general rule is that it is the province of the judge to determine preliminary questions of fact upon which the admissibility of evidence depends. *Avery v. Stewart,*134 N.C. 287, 46 S.E. 519; *S. v. Fain,*216 N.C. 157, 4 S.E. 2d 319; *S. v. Jordan,*216 N.C. 356 (361), 5 S.E. 2d 156; *S. v. Peterson,*225 N.C. 540, 35 S.E. 2d 645; *State v. Lee,*127 La. 1077; Stansbury on Ev., sec. 8; 50 Harvard Law Review, 392. Wigmore states the rule as follows: “It follows that, so far as the admissibility in law depends on some incidental question of fact — the absence of a deponent from the jurisdiction, the use of threats to obtain confession, the sanity of a witness and the like — -this also is for the judge to determine before he admits the evidence to the jury.” 5 Wigmore, sec. 2550.

*62There was no finding on this point and no evidence upon which to base a finding. While we think there was some evidence offered at the trial in support of plaintiffs’ allegations of undue influence, unaffected by G.S. 8-51, the question of the competency of the witness Lillian Paul, presented by the appeal, and upon which the ease was made to turn below, should be ascertained as material to the proper determination of the issues in the case. For this reason we think the judgment of nonsuit should be stricken out, and the case remanded for appropriate proceeding in accord with this opinion.

Reversed.