In Re McKay , 183 N.C. 226 ( 1922 )

There are two fatal errors, appearing on the record, which entitle the propounders to a new trial or to a venire de novo.

John Yarborough, one of the caveators, was allowed to testify, over objection, to an alleged conversation which he had had with M. M. Draughan in regard to the mental capacity of the testatrix. This conversation is alleged to have taken place during the lifetime of (227) the deceased, and was offered as an admission or declaration against interest — the said Draughon later having qualified as executor of the will, though not named as a beneficiary therein. Up to this time the executor, who was one of the propounders, had not gone upon the witness stand; and, in fact, he did not testify at all. We think the evidence was incompetent, and that its reception was hurtful and prejudicial.

As a general rule, statements or admissions of an executor, or administrator, are not competent or admissible as against the heirs or devisees. Davis v. Gallagher, 124 N.Y. 487; Marshall v. Adams, 11 Ill. 37. Especially would this rule be applicable when the alleged declarations, as here, were made prior to the beginning of the executorship. The executor could not, then, in a representative capacity, have been engaged in the performance of a duty, pertaining to the estate, so as to make his declarations pertinent and admissible as constituting a part of the resgestae. Church v. Howard, 79 N.Y. 415. As against the beneficiaries under the will, this testimony would fall in the category of hearsay evidence. Furthermore, admissions are received on the principle that they are statements against the interest of the party making them; but, in the instant case, statements made by Draughan, during the lifetime of the testatrix, could not be binding as against those claiming under the will.Jones v. Jones, 21 N.H. 219; Jones on Evidence, vol. 2, sec. 253. True, the personal representative may propound and defend the will in common with others, including the legatees; but, in law, his interest is of a different character from theirs. The mere fact that several persons may have a common interest, as contradistinguished from a joint interest, in a given subject-matter, does not ipso facto render their admissions competent against each other. This is the modern rule, and it is approved by a number of decisions in this and other jurisdictions.Daugherty v. Taylor, 140 N.C. 446; Belding v. Archer, 131 N.C. 287; Dean v.Ross, 105 Cal. 227; Eakle v. Clarke, 30 Md. 322; Hyman v. Wheeler, 29 F. 347.

Again with reference to the evidence of the good character of some of the witnesses, his Honor charged the jury as follows: "There has been, gentlemen of the jury, evidence tending to show the good character of witnesses who have testified, and if I recall correctly, as to the caveators, some of them, at least, and I instruct you that this is substantive evidence, and will be so regarded by you in your consideration and deliberation." Propounders excepted.

This charge was erroneous. Ordinarily, in civil actions, evidence of the character of parties and witnesses is admissible only as affecting the credibility of their testimony. Lumber Co. v. Atkinson, 162 N.C. 301, and cases there cited. Such evidence may be corroborative or impeaching in its effect; but, as a general rule, it is not to be considered by the jury as substantive proof. The rule may be otherwise in (228) actions for libel and slander, seduction, and the like, where the character of one or more of the parties or principals is directly involved, but this is not one of those cases. For exceptions to the general rule, see Norris v. Stewart, 105 N.C. 455, and cases there cited.

In all criminal prosecutions, certainly those involving moral turpitude, the defendant may elect to put his character in issue, and thus produce evidence of his good reputation and standing in the community (S. v. Hice,117 N.C. 782); but if this be not done, the State cannot offer evidence of his bad character unless and until he has been examined as a witness in his own behalf, and even then — the defendant not electing to put his character in issue — the impeaching testimony is permitted to affect only his credibility as a witness and not the question of his guilt or innocence. Marcom v. Adams, 122 N.C. 222; S. v. Traylor, 121 N.C. 674. Of course, in proper instances, in criminal cases, where the defendant chooses to put his character in issue, the pertinent evidence, pro and con, then becomes substantive proof, and may be considered by the jury as such. S. v.Morse, 171 N.C. 777; S. v. Cloninger, 149 N.C. 567.

For the errors, as indicated, there must be another trial, and it is so ordered.

New trial.

Cited: State v. Moore, 185 N.C. 640; State v. Love, 189 N.C. 771; Statev. Colson, 193 N.C. 238; State v. Nance, 195 N.C. 48; State v. Roberson,197 N.C. 658; State v. Davis, 231 N.C. 665; State v. Bridgers, 233 N.C. 578.