F. B. Brown & Wife v. Carroll , 36 Ga. 568 ( 1867 )

Walker, J.

We have had several cases, during the present term, involving a construction of the “ act to declare certain persons competent witnesses,” acts of 1866, p. 138, Eev. Code, Sec. 3798. See Chisholm vs. Turner, from DeKalb ; Field vs. Walker, from Murray, and Stamper & Wingo vs. Eobinson, from Forsyth. This is the first case in which a will was connected with it. The statute, as we have repeatedly held, does not exclude on account of interest, or being a party. Where one of the original parties to the contract or cause of action in issue and on trial, is dead, the other party cannot be admitted to testify in his own favor. In Whatley vs. Slaten, during this term, we decided that the ordinance to adjust the equities between parties to contracts, &c., applies in terms to contracts, and does not embrace wills. Here it is not sought to set up a contract to which living and deceased persons were the parties ; but the question is, what disposition did the deceased make of her property by will; did she make a will or not ? This is a question which could not be decided until the death of the testatrix. The statute does not embrace the execution of wills; or perhaps it would be better to say that the death of the testatrix does not exclude parties from being witnesses in relation to the faetwm of the will, on the ground that the testatrix is dead. She is not what is meant by the other party to the contract, as specified in the proviso to the 1st section of the act.

In a oaveat to a will, what is the cause of action in issue and on trial, and who are the parties to it ? The cause of action is the factum of the will, and the parties are the pro- „ pounders and the caveators. The parties to this proceeding are all in life. In no sense of the word can the testatrix be called the “other party,” in opposition to either the propounder or the caveators; and it is only where one party to the original contract or cause of action is dead, that the other party is excluded. Here all the parties are in life, and both sides can be heard in behalf of their own interests. The facts of this case do not make this propounder one of those “hereinafter excepted.”

Judgment affirmed.