Windham v. Howell , 78 S.C. 187 ( 1907 )

I dissent on the grounds that the Circuit Judge erred in excluding the evidence of Mrs. Odom as to the declarations of Mrs. Eliza Troublefield to the effect that she had seen the names interlined in the deed after its execution and after the death of the grantor. Eliza Troublefield was one of the grandchildren of the grantor whose names were interlined. There is no proof that she had parted with her claim at the time the declarations were alleged to have been made. These declarations against her interests and the interests of the plaintiff A.H. Windham, who claimed to be her grantee, were, therefore, admissible. Ellen v. Ellen,18 S.C. 489; Westbury v. Simmons, 57 S.C. 471; Hobbs v. Beard, 43 S.C. 370. It may be true that the declarations or admissions of one tenant in common are not, as a general rule, admissible against the others, but the admissions or declarations of Eliza Troublefield were competent against herself and her grantee, and, as I think, should not have been excluded, because they incidentally affected her cotenants.

Under the rule announced in the leading opinion, if each one of the plaintiffs had separately declared in the most explicit manner that they had seen the names inserted after the execution of the deed, none of the declarations would have been admissible, because they had united in the action as tenants in common.

The weight of authority in other jurisdictions is to the effect that, in a proceeding to prove a will, the declaration of an executor, or a devisee, or a legatee, tending to defeat a will, are not admissible, because it is impossible to have a judgment against the party making such declarations which would not be decisive of the interests of all. But there is strong reason, as well as high authority, against the exclusion. It is regarded by Wigmore as unsound (2 Wigmore, 1081), and the argument against it is forcibly stated in Beall v. Cunningham, 113 B. Mon., 399. See, also 1 Greenleaf on Ev., sec. 174.

In DuRant v. Ashmore, 2 Hill, 184, which was a case of a contested will, the declarations of two of the devisees that deceased had left no will were held to be admissible. This case was cited and its doctrine on this point reaffirmed in the opinion of Judge O'Neale in Peeples v. Stevens, 8 Rich., 198, where the declarations of the executors named in the will against its validity were held admissible. The case ofDillard v. Dillard, 2 Strob., 89, is distinguished and held not to conflict, because there the declarations offered and excluded were those of a legatee not a party to the cause. The very same condition of combination for the attainment of a common end, relied upon by Judge O'Neale to give additional support to his conclusion in Peeples v. Stevens, that the declarations were competent, are found in this case. There the fact referred to as furnishing plenary evidence of combination to a common end was the presenting together the same paper as a will, and contending together for its probate; here the parties were presenting the deed and contending together that the interlineation on which the cause depends was made before the deed was executed. It is true, in the opinion of Judge Wardlaw, concurred in by Judges Withers and Glover, concurrence was placed on the ground that a confederacy had been shown, but there is no dissent from the opinion of Judge O'Neale on the point here under consideration.

But there is much stronger reason in this case for admitting declarations of one of the cotenants than for admitting such declarations in a proceeding to establish a will.

The devisees and legatees cannot have their rights under a will separately adjudicated. They are tied to each other by the statute law, and the will must stand or fall as to all.

Here the plaintiffs in the complaint allege that the defendants G.C. Howell and Louisiana Howell were claiming the whole of the land under the deed in which the interlineations were found. They, therefore, knew the contest would be over the deed, and by bringing this action for partition they voluntarily connected themselves in the proceeding with Eliza Troublefield and all whom they alleged to be cotenants. Each of the cotenants had the right to bring a separate action against the defendants, who were in possession, for his separate share of the land, and, of course, in such separate action, the declarations of the other cotenants as to the interlineation would not have been admissible. But having elected to test the deed in one action for partition, thus uniting themselves with the other persons whose names were mentioned in the interlineation, they should not be allowed to deprive the defendants G.C. Howell and Louisiana Howell of the benefit of the declarations against her interests of Eliza Troublefield, one of the cotenants.