M'Kinney's Executors v. M'Kinney's Administrators , 2 Stew. 17 ( 1829 )

By JUDGE WHITE.

The only question insisted on in argument in this case is, that the Court' below erred in rejecting the deposition of one Thomas Smith, taken for the plaintiff, on the ground that said witness was the son-in-law of the plaintiff’s testator. In support of this .position, it is urged that Smith, notwithstanding he was a son-in-law, might have had no real interest that would have rendered him incompetent; and. that the defendant should have made a further shewing. Courts, in modern times, have leaned much against-the rejection of witnesses; but it is a well settled rule that when they are directly interested in the event of a suit, or in the record as evidence, they must be excluded. In the present case, Smith’s testimony must be viewed as tending to create or increase a fund, as part of the estate of his father-in-law, in which he might have been interested; and this was the reasonable presumption till the contrary appeared. True, it was not certainly the case; he might have been advanced to his full portion of the estate on his marriage; the will might have disposed of the whole, Without leaving him any thing, and if any thing was left him, he might have released his interest. But if this was so, the plaintiff who expected to be benefitted by his testimony, should have been prepared to have • shewn it. Could bis competency be restored by a release, it was for the plaintiff to procure it; was he advanced on marriage, or disinherited by will; it is manifest, the plaintiff, who was the executor of his father-in-law, and had the possession of the will, could have produced it with more convenience-, and more in accordance with the rules of evidence than the defendant, who, if required to shew such facts, would have had to have shown the most, if not all of them, by negative proof. Again, we must proceed on general principles, and as defendants could not usually in such cases know of the intention to introduce the witness till the trial, if called on for a stronger showing.of interest than was required in the present case, they would he surprised, or compelled to rely on the voir dire of the witness himself, which would often he an unsafe resort. The fact of the testators dying m Virginia, does notvary the aspect of this question. It is so universally true, throughout the States of the Union, that children are all concerned in the distribution of estates, that we conceive the Circuit Court were right in permitting it to have the influence it had on their decision; and that Smith was to be presumed interest,ed till the contrary was shewn.^*

Judgment affirmed.^a

* Note. This cause was at July Term, 1828, affirmed on argumenq.and the Court having consented to reconsider the cause, 4t was re-argued. at this1 l ni:m,.and again affirmed,

a SecStrong's Exr. v. Finch Minor’s Ala. Rep. 256.