Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1859-11-26
DECISIONS OF THE SUPREME COURT
OFFICIAL.


Opinions OF the Supreme COuFt of the
state of Tennessee, at Jackson, April
Term, 1859.
Haynes Walker, EKr, w. Sheene ct al.
This case involves the question of the validity of
the last will and testament of John Walker. deceas-
ed and was tried in the Circuit Court of Jefferson
county upon an issue of deuisdrt Uel non, which
was found by the jury against the will, and judg
ment rendered accordingly, to reverse which, this
writ of error is presented
The will is attested only by two subscribing wit
nesses namely Daniel Carter and Elizabeth Walker.
the latter child of the testator and in the event
of ntestacy an heir at law and distributee of his
estate
He died seized and possessed of both real and
personal property and the will embraces both and
under the witness, Elizabeth Walker is entitled to
various legacies of personal estate but takes no in
terest whatever in the lands of the testatOr. He
left nine children, or their legal representa-
tives and since the death of the testator the
said Elizabeth Walker has intermarred with Vim.
Cluck
Upon the trial in the Circuit Court after the
will had been duly proved by Daniel Carter, one
of the attestng witnesses, the plaintiff offered to
prove said will by the said Elizabeth. now Eliza
beth Cluck, the other subscribing witness but the
defendants objected to the proof of said will by the
said Elizabeth, the ground that she totally
| incompetent, WhereupOn, the plaintiff offered to
prove by Others and also by the witnesses, to said
will that her interest would be much greater with
out the WILL as an heir OF the testator John Walker
than if said will were established but the Court
refused hear this testimony, and held that she
an incompetent witness TO prove the execution of
| the will.
In this there is error. Tested by the rules of the
common law there can be doubt as to this ques-
ton No principle is better settled than that where
witness is produced to testify dgdinSthis interest
where he is equally interested on both sides Of the cause
| tl,ofb on iG ,bo1a
by his interest on the other, the rule that interest
disqualiies does not apply, and the witness is COM
petent. Greenl Ex. secs. 39l- 399-4IO-420.
1t has been repeatedly held, that a witness whose
interest under the will is balanced by his interest in
the estate in of ntestacy, is competent eth
| er to support or invalidate it, where, from any
other cause, his interest under the instrument is
reutrazed by an opposing interest against It, Gar
| land vs. Cron's Ex. 2 Bail, "a Allen VS.. Allen, 2
| Tenn. liz; 4 Degsarue, 2s2, Thompson Fs Shoeman
| l Bib, 40l; Bacon VS., Bacon II Pick. l34.
IF this be the rule IN the of balanced interest
| why is it not foTtiOri the rule where the with
comes to testify against his interest? Allen VS..
| len was case where the witnesses were held
petept. and, as we understand 1t, they had test
| it would have been against tbetf 1Fuerest
But il is contended, by the counsel of the defeH
ants in error that these principles have no ap
plcation here, because, to ascertain where the il
terest of the witness lies would involve collateTs
inquiry wholly iIpprapticahle unless the court were
|
do not assent to this argument Is not the question
| of competency, in all cases, collateral question!
And will it do reject the witness altogether be-
cause of the difficulty of getting ct his interest? Il
it be doubtful nature the objection goes to his ere
dit. and not to his competency. He Is always pre-
sumed to be cempetsBi, and il lies upon the object
ing party to sustain his exception the competency
and if he fails satisfactorily to establish it. the wit
ness is to be sworn GTeenL EY. Sec, 800 1t is
usually. question for the court and often depends
upon the decision of intricate questions of fact and
the Judge may in his discretion, take the opinion Of
! the jury upon them, Green. Ey. Sec Az to 425
But we know of no authority for the rejection et
the witness altogether, because of the difficulty o.
arriving at his Interest," and apprehend that the rules
of evidence upon the subject in testamentary causes
must be the same as in civil suits, Moreover We
venture the remark that as to ost estates the ques
ton will be easily decided. 1t must have presented
itself in the of balanced and neuralized inter
eSts TO which we have referred.
The next question is. whether Elizabeth Walke'
was competent 10 attest the paper, of the two
witnesses required by law TO a will of real estate
under the act of 1884 CHI %, sec. 4? The will by
this act, is TO be subscribed in the testators pres
ence by two witnesses at least, one of which sfal
be interested in the devise of the said lands" W.
are here to be governed BY the common law, saw
where it s changed by this act And we must bear
in mind that statute is not to be held to alter th
common law further, or otherwise, than the act ex
pressly declares. Bac. Alb. little, Statute ]. 4.
1t is well settled in North Carolina that the wit
nesses should possess the character required by tn
act at the time of their attestatOn and if the vii
be once properly attested, no subsequent event ca
destroy its validity. Allison vsl Alison Hawks
. TAI; Tucker vs. Tucker, 5 1rd. I6l. And SO is th
rule in Allen VS.. Allen, Tenn LIZ; and the weigh