From Currituck.
1. The wife of a sole executor of a will, her husband having renounced, is a competent witness to prove its execution as a will of land.
2. A wife is an incompetent witness when her husband is interested, upon principles of policy arising from the relation of husband and wife, not because she is interested in the suit, nor on account of her legal identity with her husband.
3. Whether an executor is entitled to commissions on the sales of land directed by the will to be sold, quaere.
By a clause of the supposed will the testator devised as follows: "I leave my land and tenements whereon I now reside, to be sold at the discretion of my executor, and my land at Black Hall, likewise, etc." One Adam Etheridge was appointed executor, and he, together with his wife and one Whitehead, signed the paper as attesting witnesses.
When the probate was demanded in the county court, Etheridge renounced his right to the office of executor. On the trial in the court below, before his Honor, Judge Ruffin, the execution of the paper as a will was duly proved by Whitehead, and the defendants in the caveat admitted it to be a good will of personal estate. The counsel for the plaintiff, contending it to be valid as to land, offered to prove its execution by the wife of Etheridge, the executor, who had renounced. But the presiding judge ruled her to be incompetent, notwithstanding the renunciation of her husband — holding him to be incompetent upon the score of his interest at the time of the execution of the supposed will, and that his interest at that time rendered his wife incompetent.
The jury having returned a verdict that the paper was a valid will of personal estate only, the plaintiffs appealed.
HENDERSON, J.
A commission upon the sale of lands (429) is an interest in the devise of lands, and disqualifies an attesting witness to the will from giving evidence in its support. The act of 1784, Rev., ch. 204, regards the competency of the witness at the time of his attestation, and therefore his competency cannot be restored by his afterwards becoming disinterested by a release or any other means. Both of these points were settled in Allison v. Allison, 11 N.C. 141, decided in this Court. There commissions were expressly given by the will to the witness; by this will commissions are not given. It is worthy of consideration whether the executor is entitled to any commissions for executing this will, so far as regards the sale of the lands; in doing this he acts as trustee, not as executor. The court may possibly allow commissions, but the act of 1799, Rev., ch. 536, is not imperative on the subject, for that act may be confined to such cases as fall within his office of executor. I may put too rigid a construction upon the act, for I confess that much observation on the effects of allowing commissions to those entrusted with the management of dead men's estates, and often seeing them eaten up by the managers, has induced me the more to approve of and admire the maxim of the common law, that compensation for services shall not be made unless there is a contract for it, express or implied; hence the rule in equity, that a trustee is entitled to no compensation, but only to a remuneration for actual disbursements. Taking it, however, for granted that this executor is entitled to commissions upon the sale of the lands, yet as his renunciation of the executorship operates as a release of them, he being the only person named executor in the will, the competency of his wife as a witness to the will is thereby restored. The attesting witness is excluded from giving testimony by the act of 1794, solely on the ground of interest. If, therefore, a person was infamous at the time of attestation, and before giving evidence should be (430) restored to credit, I presume that he is made competent; for the common law regards the situation of the witness, as respects his competency, when he gives evidence, and not at the time when he acquired his information. The wife of the executor in this case had no interest; she could claim nothing from the result of this suit. It is true, her husband independently of his release could; but what is his is not hers — it is at his and not at her disposal. It is true that she cannot be a witness in any case where her husband has an interest, and some have gone so far as to hold that she is incompetent to contradict what he had previously sworn. Her incompetency is not founded on the ground of her interest, but upon principles of policy; for she is as incompetent to swear against her husband (however willing she may be to do so) as to swear for him, unless in personal injuries to herself; her declarations are inadmissible against him; which they would not be if she was excluded on the ground of interest, and because they are one flesh, and if what was his was hers. It requires neither argument nor authority to prove that it is a reason of policy and not her interest which excludes her. Neither will I enter into an argument to prove that the relation of wife does not so pervert the heart or mislead the understanding as to render her attestation of a will of lands as unsafe as that of her husband. It is sufficient that I find the law plainly so written in the act of 1784; she is not interested in the devise of the lands.
I think, therefore, there should be a new trial.
PER CURIAM. Judgment reversed.
Overruled: Huie v. McConnell, 47 N.C. 455.
(431)