Martz's Ex'r v. Martz's Heirs

• Decision Date: 02 October 1874
• Citation: 66 Va. 361
• Parties: D. MARTZ'S ex'or v. D. MARTZ'S heirs.
• Court: Virginia Supreme Court

66 Va. 361

D. MARTZ'S ex'or v. D. MARTZ'S heirs.

Supreme Court of Appeals of Virginia.

October 2, 1874

1. Upon the proceeding for the probate of a will, J, who is the nominated executor and propounder of the paper, and also a devisee and legatee under it, is a competent witness to sustain the probate. See Code of 1873, ch. 172, §§ 21 and 22.

2. A will is not a contract and an executor or legatee is not a party to it in the sense of the statute.

3. One party to a suit is incompetent as a witness on account of the disqualification of the other party only in a case where he was a party to the transaction which is the subject of the suit or proceeding, and the other party to it is dead insane, or incompetent from some legal cause.

4. Where the objection is to the competency of the witness, and the objection is sustained, it is not necessary to state in the exception what the party offering him expects to prove by him.

5. If an exception to the ruling of the court excluding a witness is taken at the time, the bill of exception may be prepared and signed and sealed after the verdict and judgment. And if the counsel of the parties do not agree as to the fact whether the exception was taken at the time, the court, not remembering, may certify the facts; and the entry of the clerk in the memorandum stating tat the exception was taken on the trial, the court was right in certifying the facts and the appellate court may consider the question raised by the bill of exceptions.

This was a motion in the Circuit court of Rockingham county by Jackson Martz, the nominated executor, for the probate of the will of Dorilas Martz, deceased. The heirs of Dorilas Martz were summoned, and appeared and opposed the probate.

On the trial of the motion, the propounder of the paper, after having offered it in evidence to the jury, proposed to introduce as a witness Mary M. Martz, who was a sister of Dorilas Martz, and a devisee under the will; but she was objected to, on the ground that she was an incompetent witness to testify in favor of the will; and the court sustained the objection, and excluded the witness: and the propounder excepted.

The propounder then proposed to introduce as a witness, in behalf of said will, one Jackson Martz, a brother of Dorilas Martz, deceased, and a devisee under said will, the executor therein named, and the scriviner who wrote the will, and one of the propounders of the will; to the introduction of which witness the contestants objected; and the court sustained the objection: and the propounders excepted.

The contestants, to maintain the issue on their part, offered in evidence the will of Sarah Martz, the mother of Dorilas Martz, deceased, by which she gave to Dorilas Martz all her estate, real and personal, and directed him to pay to certain of her children each $750. And also proved by a witness, Curtis Yates, that the said Sarah Martz had made a previous will some years before; and that the said Dorilas Martz had told said witness that the reason the said Sarah Martz had changed her will, and made her last will, was that she was afraid if she left her property, or any part of it, to her sons and daughters, that it would be sequestered by the Confederate government, as they lived outside of the lines of the said Confederate states. To the introduction of said will of Sarah Martz, and the testimony of Yates, the propounder of the will objected; but the court overruled the objection: and the propounder excepted.

In relation to this exception, the court certified that the propounder by his counsel alleges and claims that he excepted and tendered this exception; and the contestants by their counsel claim that if any exception was taken at the time the said evidence was permitted to go to the jury, they did not hear the exception taken; and the court, not remembering whether the exception was taken at the time, certifies these facts as a part of the record.

The jury found that the paper was not the will of Dorilas Martz, deceased. And, thereupon, the said motion for probate coming on to be finally heard, the court approved the verdict, and refused to admit the paper to probate. And, thereupon, Jackson Martz applied to a judge of this court for an appeal; which was allowed.

Haas, Woodson and Berlin, for the appellant.

Walton and Robert Johnston, for the appellees.

OPINION

ANDERSON, J.

This is a case of probate. The first question I will consider is, did the court err in excluding the testimony of Jackson Martz and Mary M. Martz from the jury on the ground of incompetency. They were both legatees and devisees, and propounders of the will; and the former was the scrivener who wrote it and was named the executor.

Neither of them was incompetent because of interest. Act of March 2d, 1866, first clause of section 1; Code of 1873, p. 1109, ch. 172, § 21. And the former was not incompetent because he was executor. Code of 1873, p. 913, § 21. Were they incompetent on the ground of being parties? In said twenty-first section of chapter 172, it is enacted that " in all actions, suits or other proceedings of a civil nature, at law or in equity, & c., the parties thereto, & c., shall, if otherwise competent to testify, & c., be competent to give evidence on their own behalf, and shall be competent and compellable to give testimony on behalf of any other party, & c., except as afterwards provided." This language is very comprehensive; and this being a suit or proceeding of a civil nature, the parties to it are competent to give evidence on their own behalf, not being otherwise incompetent unless they fall within one or other of the exceptions.

The exceptions are contained in the second section. § 22 of ch. 172 of the Code. The first is incompetency, on the ground of the relation of husband and wife. If they are incompetent as husband and wife the law is not altered; they are not made competent by the twenty-first section. Jackson Martz and his sister Mary do not come within that exception.

Second. Attesting witnesses to wills, deeds, & c., are excepted. They do not come within that exception, as neither of them are attesting witnesses.

Third. When one of the original parties to the contract or other transaction which is the subject of investigation is dead or insane, or incompetent to testify by reason of infancy or any other legal cause, the other party shall not be admitted to testify in his own favor, unless first called to testify on behalf of the party first named. It will be observed that this disqualification which renders a party to the suit incompetent, applies only to one who is a party to the contract or transaction which is the subject of investigation. The exception applies only to a case where there were two or more parties to a contract or transaction, and one of them dies, or becomes insane, or is incompetent to testify for any other legal cause, the other party to the contract or transaction shall not be admitted to testify. It only applies to parties to the contract or transaction which was the subject of the suit or proceeding. The only question then is, were Jackson Martz and his sister Mary parties to the transaction which is the subject of this suit or proceeding? If they were not, they are not embraced in this exception and not rendered incompetent by it.

The execution of the paper, purporting to be the last will and testament of Dorilas Martz, is the transaction which is the subject of this proceeding. Is it his will? Jackson Martz and Mary his sister, are legatees and devisees. They may be said to be parties in interest under the will. But are they parties to the transaction of...