McKinna v. . Hayer ( 1823 )

If the father of the witness whose deposition is objected (425) to had died intestate, I think the deposition ought not to be read for an obvious reason, that the rights and property of the father by law devolving on the son, he would thereby be interested in this suit and of course would not be competent to give evidence; but it appears that the father made a will, in which no doubt he has disposed of all his property; perhaps he may have given it, or part of it, to this very son, or may have given him nothing. By making a will we may conclude that nothing has fallen to him by operation of law, for if the father had been contented with the disposition which the law would have made of his property he would not have made a will. I think as an interest in the son was not shown by producing the will of the father, the court were right in receiving the deposition of the son, and a new trial ought not to be granted.

TAYLOR, C. J., concurred in this opinion.