Virginian-pilot. (Norfolk, Va.) 1898-1911, 1899-03-30

This makes it substantially an action
of cjectment. and subject to the law
and rules governing in the trials or such
cases.
1t is admitted that James Wilson was
the owner of the lands in controversy.
and that both parties claim under him;
the plaintiffs by descent, as heirs at law
of James. who they allege died intcs-
tate in 1856. The defendants deny that
the said James died intestatc, and al
lcge that he left last will and tosta-
ment. In which he devised said lands
to his son Simon l.. Wilson: that said
Will was. nfter the death of the testntor.
duly admitted to probate. and recorded
in the clerks Office of Pitt county; and
that defendants now own and hold
said lands under Simon Il. Wilson by
successive conVeyances from him to
them. And it being admitted that
plaintiffs were children and heirs at law
Of James, the plaintiffs had n prima
facie case, ana the burden was upon
defendants. Defendants then showed
their chain of title from Simon Il. Will
son 10 them. and then proposed to
prove by parOl that James Wilson left
his last will properly executed; that
this will was duly probatcd and re-
corded in Pitt county in 1856: that the
court house in Grcenvillc. Pitt county,
was burned In 1858; and that this will.
and I'll tho records ana entries show
ing It's probate and registration. were
burned and destroyed at that time. De
PENDANTS also proposed to prove by pa
rol that the lands now in controversy
were willed to the said Simon II. Viii
son. TO prove the existence probate
and recording of said WILL defendants
introduced or read the deposition of the
said Simon. under whom they hold. All
this was objected to by plaintiffs, but
allowed by the court, and plaintiffs cx-
ccptcd.
Plaintiffs first objection is that any
parol evidence was incompetent on THIS
trial to prove and establish the probate
and recording Of said Will: that 1t Is an
effort on the part of defendants 10
prove and establish Il record by parol
testimony. which is not allowable. To
do this, plaintiffs allege that there
should have been n direct proceeding
FOR that purpose, under the statute.
But this position of plaintiffs cannot
he sustained. IS we have SEEN it is
competent to show the existence of Il
will by parol. and whore the records of
the cour; have been burned and de-
stroycd. destroying the will and record
of It's probate and registration. the
same may be proved by parcl. The
question in this case is as to the COM
potency of Simon II. Wilson to prove
these facts. lie is the cssicnor OF the
defendants. and is therefore incompe-
tent to testify as to transactions AMI
communications between him and his
father. James. under whom the plain
TITS claim. The facts testified to by him
arc that four days after the death of
his father he found this Will among
his papers: that he carried il TO court
and had II nrohated and recorded: that
he qualified as executor (beinC named
rs such thrrein): and that he settled tho
estate Of his father. We're these trans
actions or communications with his
father? They cannot be communications
with his father. for his father was dead
Tho finding Of the viii among his
fathers nancrs, four days after his
death cannot be n transaction with his
father. The taking the will TO court.
and having 1t proved and recorded.
cannot be n transaction with the faith
er. who was dead. These propositions
seem 10 be too plain to admit OF doubt
or discussion.
The last ground in support Of plain
tiff's contention is that. as Simon WAS
n devisce in said will, this made it n
transaction with the father. But it
does not seem to us that this conten-
ton of plaintiffs can he sustained. Sup
pose it had been Il promissory note
given to Simon by his father; he would
have been incompetent to prove the
cXccution-that he saw his father sign
the note but lac would have been a
competent witness to prove the sigma
turc OF his father. and then the note
proved the transaction. In this case
simon did not prove the execution OF
the will. lie was not n witness to It,
l7a.>tiiers AMI
when it was proved, like the note. it
spoke for itself 1t was then matter
of record. subject to the inspection of
all persons and not n transaction with
any one. Simon was n competent wit
ness, under section $50 Of the Code ana
only incompetent. under section 800. as
to transactions and communications.
But, TO our minds there IS quite n
distinction between note or any trans
action inter parties. where there is ne
cessarly contract. or any agreement
between the parties thereto. and q will.
where there is no transaction between
the parties. For this reason. it seems
that section 500 Of the Code does not
apply to wills, but that they are gov
erned by section PLAT of the Code. The
competency Of simon r. Wilson to tes-
tify to the finding OF the will and to the
probate and recording of the same, be-
ing shown. anG the jury having found
that James Wilson did not die lntestate
but left last will and testament. which
was admitted To probate and was rec
ordcd in Pitt county. the presumption
is that he wlled the land In contro-
versy. This being so. and plaintiffs
having offered no evidence in rebuttal
of this presumption, they have failed
to establish title to the lands sued for.
and their action must fail. Affirmed