O'Neal v. Reynolds , 42 Ala. 197 ( 1868 )

A. J. WALKER, C. J.

Section 2704, (2302, a,) Revised Code, effects an abolition of incompetency to testify, because the proposed witness is a party or interested, subject to an exception. That exception is, that where an executor or administrator is a party, neither party shall testify against the other as to any transaction with, or statement by, the testator or intestate, unless called to testify thereto by the opposite party. The exception only includes parties. The only parties to this proceeding are the proponent and contestants. The widow was therefore not within the exception, and was a competent witness. In the case of Leslie v. Sims, 39 Ala. 161, the question arose, whether one who was next of kin of the deceased and a legatee under the will, was a party to a contest of the probate of a will, and therefore incompetent without regard to his interest. This court decided, that he was not a party, and that the rule, which excludes parties from testifying, did not apply to him. This decision was made before the act embraced in section 2704, (2302, a,) of the Revised Code was adopted, but it settles a principle which controls the question in hand. The widow of the deceased not being a party, was not within the exception to the general rule abolishing the common law doctrine, that interest and the relation of a party to the suit were grounds of disqualification to testify; and she was therefore a competent witness.

Notwithstanding the foregoing conclusion leads us to a reversal of the decree of the court below, it is expedient for us to notice another objection to the ruling of the court, lest our failure to pass on it should be misunderstood. The effect of the exception to the general rule prescribed by the section above referred to, is not to render a witness incompetent generally, but incompetent only to testify upon certain specified subjects. The court should therefore not have excluded the witness, even if .she had been a party, but should have restricted her examination to subjects other than those specified in the exception.

The testimony may not be the same on another trial, and it is unnecessary for us to review the decision of the probate judge on the evidence before him.

Reversed and remanded.