McLean, Exec'r. v. . Elliott .

Supreme Court of North Carolina

McLean, Exec'r. v. . Elliott .

72 N.C. 70

CourtSupreme Court of North Carolina

DecidedJanuary 5, 1875

StatusPublished

Cited by1 cases

This text of 72 N.C. 70 (McLean, Exec'r. v. . Elliott .) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McLean, Exec'r. v. . Elliott ., 72 N.C. 70 (N.C. 1875).

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Opinion

*72 Bywum, J.

1. The second issue submitted by the caveators, ■was, “la W. B. Pressley, one of the subscribing witnesses to to the paper writing, interested under it, and if so, in what property and for what interest or estate.” This issue, on the motion of the propounders, was struck out by the Court. It is a novel proceeding, to attempt to submit the competency of & witness, as a question of fact for the jury. His competency is a question for the Court to be raised when he is offered asa witness and to be then determined by the Court. If the law were otherwise, a law suit would be almost interminable.

2. Was Mr. Pressley a competent witness to establish the will ? Even assuming that he was interested as a legatee under the will, yet Bat. Rev. chap. 119, sec. 10, in express terms, makes him a competent witness to prove the will, the effect being to deprive him of the legacy, after the will is established. Whether he does take an interest under the will, is not now a question before the Court. If doubts are entertained upon that point, by those who are interested, and a construction of the will, by the Court, is desired, proceedings to that end must be properly instituted. Ingenious and well considered arguments, upon the proper construction of the will, are submitted by the counsel for the propounder, but we are precluded by the rules of this Court, from entering upon an inquiry wholly collateral to the issues now before the Court. Woods v. Sawyer, Phil. law, 273.

There is no error.

Pee CüRIAm. Judgment affirmed.

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*72 Bywum, J.

1. The second issue submitted by the caveators, ■was, “la W. B. Pressley, one of the subscribing witnesses to to the paper writing, interested under it, and if so, in what property and for what interest or estate.” This issue, on the motion of the propounders, was struck out by the Court. It is a novel proceeding, to attempt to submit the competency of & witness, as a question of fact for the jury. His competency is a question for the Court to be raised when he is offered asa witness and to be then determined by the Court. If the law were otherwise, a law suit would be almost interminable.

2. Was Mr. Pressley a competent witness to establish the will ? Even assuming that he was interested as a legatee under the will, yet Bat. Rev. chap. 119, sec. 10, in express terms, makes him a competent witness to prove the will, the effect being to deprive him of the legacy, after the will is established. Whether he does take an interest under the will, is not now a question before the Court. If doubts are entertained upon that point, by those who are interested, and a construction of the will, by the Court, is desired, proceedings to that end must be properly instituted. Ingenious and well considered arguments, upon the proper construction of the will, are submitted by the counsel for the propounder, but we are precluded by the rules of this Court, from entering upon an inquiry wholly collateral to the issues now before the Court. Woods v. Sawyer, Phil. law, 273.

There is no error.

Pee CüRIAm. Judgment affirmed.

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Bluebook (online)

72 N.C. 70, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mclean-execr-v-elliott-nc-1875.

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