#### In re WILL OF THOMAS S. MANN.

(Filed 6 October, 1926.)

Wills — Evidence—Transactions and Communications — Deceased Persons —Statutes—Beneficiaries—Executors and Administrators.

Tbe rule tbat one interested in a will as a beneficiary and executor may not testify to any transaction or communication with tbe deceased beneficial to bis own interest, unless in rebuttal, under tbe inhibition of C. S., 1795, does not apply to bis testifying to tbe identity of certain papers as being those which he had previously seen in tbe testator’s presence; nor to tbe fact tbat it was the same “will,” when only for tbe purpose and effect of the identification of tbe sheets in question.

Appeal by caveators from *Bunn, J.,*at January Term, 1926, of Oarteeet.

*249Issue of *devisavit vel*non, raised by a caveat to tbe will of Tbomas S. Mann. Alleged want of proper execution, mental incapacity and undue influence are tbe grounds upon wbicb tbe caveat is based.

Tbe verdict establishes: (1) Tbat tbe paper-writing propounded was • duly executed and published in manner and form as prescribed by statute for tbe execution and publication of wills; (2) tbat Tbomas S. Mann bad sufficient mental capacity to make and execute tbe same as bis last will and testament; (3) tbat tbe devise made therein to *~W.*H. Bell, and bis appointment as executor, were not procured by undue influence; and (4) tbat tbe paper-writing propounded, and every part thereof, is the last will and testament of Tbomas S. Mann, deceased.

From a judgment on tbe verdict sustaining tbe will and ordering it to probate, tbe caveators appeal, assigning errors.

*E. H. Gorham, W. G. Gorham and Ward & Ward for caveators.*

*0. JR. Wheatly and Luther Hamilton for propounders.*

Stacy, C. J.

A careful perusal of tbe record leaves us with tbe impression tbat tbe matter has been beard and determined substantially in accord with tbe principles of law applicable, and tbat tbe validity of the trial should be upheld. All questions in dispute have been settled by tbe verdict, and no action or ruling on tbe part of tbe trial court has been discovered by us wbicb we apprehend should be held for reversible error.

The only question presented by tbe appeal, not heretofore- settled by a number of decisions, is tbe one raised by tbe following objections to tbe testimony of "W. H. Bell, beneficiary and executor under tbe will, and one of tbe propounders:

> “Q. Mr. Bell, examine tbat paper-writing, please, and state whether or not you have seen it before. (Objection; overruled; exception.)

> “A. Yes, sir, I have seen it before. I am tbe Bell mentioned in that paper-writing as executor and I drew tbe paper-writing, (referring to tbe three sheets in controversy).

> “Q. Mr. Bell, those three sheets you have there, were they tbe same sheets attached then as they are now, at tbe time óf tbe execution? (Objection; overruled; exception.)

> *“A.*Yes, sir.

> “Q. Were they attached then? (Objection.)

> “Q. By tbe court: Is tbe will now as when be wrote it? (Objection; overruled; exception.)

> “A. Yes, sir.”

It is urged tbat this testimony should have been excluded as violative of tbe rule against admitting evidence of personal transactions or com*250munications between the interested party and the deceased, but we do not think the evidence in question falls within the inhibition of the statute.

True, it has been held that, in a proceeding of this kind, both pro-pounders and caveators are “parties” within the meaning and spirit of O. S., 1795, which disqualifies a party or person interested in the event from testifying as a witness in his own behalf against the executor, administrator or survivor of a deceased person, concerning a personal transaction or communication between the witness and the deceased, except where the executor, administrator or survivor, is examined in his own behalf, or the testimony of the deceased person is given in evidence concerning the same transaction or communication. *In re Chisman,*175 N. C., 420; *In re Harrison,*183 N. C., 457; *Pepper v. Broughton,*80 N. C., 251. The exclusion of such testimony rests not merely upon the ground “that the dead man cannot have a fair showing, but upon the broader and more practical ground that the other party to the action has no chance by the oath of the relevant witness to reply to the oath of the party to the action.” *McCanless v. Reynolds,*74 N. C., 301. Men quite often understand and interpret personal transactions and communications differently, at best; hence, the Legislature, in its wisdom, has provided that an *ex parte*version of such matters may not be received in evidence except as above stated and as further provided by the statute. *White v. Evans,*188 N. C., 212; *Sherrill v. Wilhelm,*182 N. C., 673; *Ins. Co. v. Jones,*191 N. C., 176. The reason for the provision was stated by *Rodman, J.,*in *Whitesides v. Green,*64 N. C., 307, as follows: “No interested party shall swear to a transaction with the deceased, to charge his estate, because the deceased cannot swear in reply. If, however, the representative of the deceased will swear to such a transaction, to benefit the estate, fair play requires the rule to be altogether dispensed with.”

Here, the testimony of *W.*H. Bell, though a party and interested in the event, is not incompetent, because it does not concern a personal transaction or communication between himself and the deceased. The evidence deals only with independent facts and matters of which the witness was able to speak of his own knowledge and observation, without regard to what was done or said by the deceased. *Johnson v. Cameron,*136 N. C., 243.

In *Lane v. Rogers,*113 N. C., 171, it was held that the interested witness might say she saw a memorandum book in the hands of the deceased, at the time and place in question, but not that the deceased handed her the book. And in *Peoples v. Maxwell,*64 N. C., 313, it was held competent for an adverse party to the action to prove the handwriting of the deceased if he knew it, but not to testify that he saw *251the deceased sign the paper-writing. In that case, the written receipt was executed to the witness, and hence the actual signing was a transaction between the witness and the deceased. To sanie effect is *Bright v. Marcom,*121 N. C., 86. But here the witness only testified to what he saw; that the paper-writing was the same then as now, and that it consisted of three sheets of paper, attached together. He did not testify to any personal transaction between himself and the deceased. *Carroll v. Smith,*163 N. C., 204; *McCall v. Wilson,*101 N. C., 598; *Ballard v. Ballard,*75 N. C., 191. The witness did not say the will was executed by the deceased. It is true, he was asked if the will is now “as when he wrote it,” and if the three sheets were attached “at the time of the execution” as they are now? But these expressions were used to designate the time in question, and the witness so understood them. The answers relate only to what he saw and not what was done by the deceased. The objections to the evidence were properly overruled. *In re Harrison, supra.*

The validity of the trial nuust be upheld.

No error.