Graham and others v. O'Fallon, exr. of Mullanphy, 4 Mo. 338

Opinion delivered by McGirk, Judge. The question presented for our consideration and de-cisión is, were these persons competent to give evidence in the cause? The counsel for the plaintiffs in error have cited the case of Trotter v. Winchester et al, decided by this court,(1 vol. M. R. 413) to prove that a devisee cannot be a witness. That case does indeed, prove the abstract proposition. But the counsel for the defendant in error, place the case of a devisee, on the ground of interest alone; and we are satisfied this is the ground on which the question ought to be placed.

As a general rule, the case of Trotter v. Winchester, was rightly decided; the facts are imperfect, and we suppose a case of interest must have been made out. To prove that a devisee may be a witness in some cases and in a case like the present, the defendant’s counsel cite and rely on the case of Windham v. Chetwynd—1 Burr R. 414, this case puts the question on the true footing; that is, that a devisee, may or may not be a witness, according as his interest may be balanced, or that his interest may be against the party for whom he is brought to testify.

Then, on the ground of interest, one rule is that where the interest is equal, the witness is competent; and another is, that where his interest is against the par- . ty who offers him, he may be sworn — all that class of devisees whose interest depends alone on establishing the will, are clearly incompetent; as when the testator devises $100 to A. a stranger, and A. attests the will, he cannot be sworn, for by his swearing, he establishes his right to the $100.

In the case at bar, all the persons rejected as witnesses, were legatees, as far as the supposed will is known, they,are also heirs at law, and distributees, in case no will is, found to exist. The executor offered to prove that their interest under the supposed will, was and would be less under the will, than it would be if no will existed.

We are of opinion the county court ought to have received this evidence, and if the evidence had made out the interest to be as the party offered to prove it to be, then the witnesses ought to be compelled to give evidence, because their swearing would be against their interest. But it is said by Mr.

Geyer and Allen, for the plaintiffs in error, that the inquiry proposed in this case, cannot be gone into, because the estate is very large, and the court would have to make estimates of the value, of devises, and also estimates of the value of the whole estate, to'ascertain whether the witnesses would take most as devisees or as heirs and distributees. It is admitted that this investigation may be troublesome, but it can as well be made, as if could in other cases of objections, on the ground of interest, and that there may be difficulties, is not a valid objection.

On the ground of rejecting this testimony, the court erred, and was rightly corrected by the circuit court. The county court refused issue a citation upon these witnesses, or most of them, compej them to come into court, and testify touching their knowledge of the possession, existence, or distruction of the will. The circuit court decided that the county court erred also on this point; we are of opinion, the county court was right on this point.

Ihe law requires the exei. or other person interested, to swear in such a cage he has cause to believe, and that he does be-heve, that some person has concealed or embezzeld any goods, chattels, money or effects, books, papers &c. the grant same &c.; the affidavit does neither say in terms, that the affiant has cause to believe, nor does believe, both should have been affirmed by the affi-¿avit. on this point, the circuit court erred and for this its is reversed.

To authorise the county ct. to a citation, to then ’knowledge conceming .the existenee, de-session of a will, it is essential that the exeor. or other ed should make affidavit “that he lieve^and does believe’,athat some person has concealed, or em-pape/s &c.

An affidavit want-ng the defective* and t°he court may properly refuse a cita- who draws up a will, is present at the time seestStheewiil,0Iai ter .the death of the testator, in testáíor’Tfamüytf16 —reads it and collects its principal provisions— is a competent witness to prove these facts, and his evidence is not subject to the objection, that it discloses confidential communications of a client. A point was made in regard to Mr. Spalding’s testimony, which it is said to be desirable to have the opin-i°n of the court on.

We, to save future disputes on the" point, give an opinion, which is, that his testimony is, in our opinion, entirely competent, and not subject to the objection, that it discloses confidential communications of a client.

In regard to the question, whether the circuit court erred or not, in reversing that part of the judgment of the county court, which finds that John Mullanphy died intestate; we give no opinion, as the cause had better on wholej be sent back for furthei trial; the judgment of circuit court, is affirmed, the cause remanded to that court; -with directions to be sent to the county court for farther proceedings. Judgment affirmed, with costs, cause remanded.