Leslie v. Sims , 39 Ala. 161 ( 1863 )

A. J. WALKER, C. J.

The court committed no error, in excluding the declaration of Mrs. Sims, offered in evidence by the contestant. — Blackey v. Blackey, 33 Ala. 611; Taylor v. Kelly, 31 Ala. 59.

[2.J The proposition upon which rests the objection that was made to the competency o'f Moses T. Leslie as a witness, is, that the mere fact that a legacy is bequeathed to one renders him incompetent to testify against the validity of the will. That proposition has neither reason nor authority to support it. — Roberts v. Trawick, 13 Ala. 68 ; Cleland v. Huey, 18 Ala. 343. The court erred, therefore, in sustaining the objection, and, for the reason stated in it, excluding the witness.

[3.] The rule is to reverse, when an error has been committed, unless the record affirmatively shows that no injury resulted from that esto? — Buford v Gould, 35 Ala. 265. It is contended, that no injury resulted from the error in this ease, because the witness was incompetent to testify for the contestant upon other grounds. His incompetency is apparent, it is contended, because it appears that he would be entitled to a much larger portion of the decedent’s estate, if the will propounded for probate should be rejected, than he would receive under the will. If it be conceded that the witness might have been excluded upon the objection that he was interested, it does not follow, that the contestant is uninjured by the erroneous sustaining of the particular objection which was made. It may be that, if the objection on account of interest had been made, the competency of the witness would have been restored.-Robinson v. Tipton, 31 Ala. 595; Scales v. Desha, Shepherd & Co., 16 Ala. 308. To allow an error, in sustaining one objection to the competency of a witness, to be cured on appeal by reference to another remediable objection, which might have been made, but was not made, would deprive a party of the right to restore the competency in those cases where it was practicable.

The question here is not the same with that which arises when the court, for a wrong reason, excludes illegal evidence. If evidence is intrinsically illegal, it is not entitled to any consideration from the jury, although it may happen to have been recited in their hearing; and no waiver on the part of either party can make it legal. On the other hand, the evidence adduced by a witness is not illegal, because the witness was incompetent on account of interest. A party may waive the objection for interest; and, if he does not make it, it is not the province of the court to make it for him. — Gray v. Brown, 22 Ala. 262. The ruléis, that an objection to the competency of a witness, on the ground óf interest, must be made at the first opportunity after its discovery. — Gray v. Brown, supra ; Hudson v. Crow, 26 Ala. 515 ; Drake v. Foster, 28 Ala. 649; Hair v. Little, ib. 236; Insurance Co. v. Goodman, 32 Ala. 108. This rule would not have permitted the appellee to claim, as a matter of right, the privilege of mating the objection for interest in the court below after the examination of the witness had terminated. A fortiori, it can not be made for the first time in this court, thus precluding all opportunity for the restoration of the competency of the witness.

[4.] It is also urged, that the witness was a party to the suit, and therefore the appellant had no right to his testimony. It is a sufficient reply to this argument, that the witness was not a party. The notification of the next of kin, - in a proceeding for the probate of a will, does not make them parties. They are not parties, unless they are made parties in the probate court, or participate in the contest. This point was so ruled, after mature deliberation, in the recent case of Patterson v. Clemens, 38 Ala., to the opinion in which case we refer for a statement of the reasoning and authorities in support of the proposition.

Reversed and remanded.