M'Kinna v. Hayer , 9 N.C. 422 ( 1823 )

Hall, Judge.

If the father of the witness whose deposition is objected to, had died intestate, I think the deposition ought not to bo 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 he competent to give evidence ; hut it appears that the father made a will, in which, no doubt, he has disposed of all his property $ perhaps he may hav e 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 hi in 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. £ think as an interest in the son was not shewn by producing the will of the father, the Court were right in receiving the depositios?, of the son, and a new trial ought not to be granted.

Tavxo.R, Chief-Justice, concurred in this opinion,