Talbot v. Talbot. person, signed it as witnesses. He also says that the appellant himself called upon him, the witness, to draw the second will, saying, at the same time, that his father was going to make a new will, and adds that the appellant had previously told him that the testator talked of getting the witness to draw another will. The cross-examination of the witness, Conery, on this subject appears to assume that the testator had made a previous will, and that his object in getting Conery to draw the will in question was to change the disposition of his property made in the prior will. This is, I think, sufficient to establish, prima facie, that the first will had been properly executed. But it is suggested that, although the first will was duly executed according to the forms prescribed by the statute, it does not follow that it was a valid will. It might still, upon being propounded for probate, be rejected, upon the ground of the incapacity of the testator, or as having been obtained by fraud or undue influence. Hence, it is insisted, by some of my associates, that, until the first will was proved and established as a valid will, it could not be assumed that its effect would be to neutralize the interest of the widow. This posi tion, however, cannot, in my view, be sustained. A will, in all respects duly executed according to law, is, prima facie, a valid will, and must be so regarded until the contrary is shown. The burden of proof, in all such cases, lies upon the party denying its validity. The question might be very clearly presented in this form. Suppose, upon the trial of an issue in a suit at law, a witness is offered who appears, prima facie, to have an interest in the event of the action, and, to remove the objection, it is proposed to show a will, in all respects properly executed: would it be a sufficient objection to the evidence that the will had not been proved, and that it might turn out to be invalid? I think not. Objections upon the ground of interest have been frequently met at the Circuit by the introduction of bonds, notes, and other instruments, which have never been judicially established; and I am not aware that an objection for that reason has ever been sustained. It is as true of such instruments as of wills, that they may be void for Talbot v. Talbot. incompetency, for fraud, and other causes; but such invalidity is not to be presumed. The law assumes the contrary, until the invalidity is shown. There is no reason why wills should be made an exception to this rule; and I have met with no authority to that effect. It follows, that the Supreme Court was right in holding that the widow had no interest in the matter concerning which she was offered as a witness, and, hence, that she was improperly excluded by the Surrogate. The order appealed from must, therefore, be affirmed. DAVIES, LOTT, JAMES and HOYT, Js., concurred. DENIO, J. (Dissenting.) The alleged error of the Surrogate mainly relied on by the counsel for the contestants is, that the widow of the deceased was improperly excluded when offered as a witness on their behalf. This ruling is sought to be sustained by the counsel of the present appellant, not only on the ground of interest, which the Supreme Court assumed to form the basis of the Surrogate's determination, but because, as alleged, the witness was incompetent on account of being a party to the proceeding. It is impossible to say on what ground the Surrogate held the widow incompetent. No objection on the part of the proponent, to her being sworn, is stated; but the Surrogate, so far as appears, excluded the witness of his own motion. The objection of interest is not alluded to, nor any opportunity given to obviate it by a release or otherwise, if it existed. The objection that the witness was incompetent as a party to the proceeding, if a good one, was patent, and did not require to be pointed out. The officer had the record before him, and of course knew the precise relation which the witness sustained to the litigation; and if the law did not permit a person thus situated to be examined, it was quite correct for the judge to exclude him, unless the opposite party should consent to her being received. The first inquiry, then, is, whether she was incompetent on account of being a party to the proceedings, irrespective of any question of interest. At law the rule was Talbot v. Talbot. well established that a party to a suit could not be received as a witness, whether he was interested or not. (Pack v. The Mayor, &c., of New York, 3 Comst., 489; Cow. & Hill's Notes, 134, 137, 1548.) In Chancery the rule seems to have been the same, subject, however, to the exception that if a defendant desire to examine a co-defendant he might have an order allowing him to do so on showing by affidavit that the party sought to be made a witness was not interested in the matter to which he was to be examined. Where such order was obtained the party might be examined, subject, however, to all objections to his competency other than that he was a party to the suit. (Chancery Rules of 1844, Rule 78.) If being a party was not, prima facie, a disqualification, it would not be necessary to obtain an order; but the question upon receiving his testimony would be the same which arises when any person is proposed to be examined. A complainant cannot be examined on behalf of a co-complainant. (Eckford v. De Kay, 6 Paige, 565.) Proving a will before the Surrogate, under the statute, is not strictly a suit in court, though it is a judicial inquiry of the same general character. The executor, or other party propounding the alleged will, is required to procure and serve a citation, in the nature of process, against all persons who would be entitled to a share of the succession in case of intestacy. The persons cited may or may not, on the whole, be interested to oppose the probate, and they may appear, or abstain from appearing, according as their interests may seem to them to require; or some of those interested to defeat the alleged will may stay away, relying on a sufficient opposition being made by other interested parties who actually appear as contestants, and whose opposition would necessarily inure to their benefit. The judg ment operates in rem and in personam. In the former aspect, when the will is established, the judgment declares the assets to be a fund to be distributed according to the directions of the will, and irrevocably attaches that character to them. As a personal judgment, it divests all the parties proceeded against of the rights which they would have had under the statute of distributions in the case of intestacy, and also all such as they Talbot v. Talbot. would have had under any former will which is revoked or superseded by the one attempted to be proved. This view of the effect of the proceeding shows that, upon principle, there is the same reason for excluding the testimony of the parties which would exist in a regular proceeding at law or in equity. No substantial distinction exists between the different proceedings in this particular. Still, as this rule is in all cases an arbitrary one, and is not founded on any very strong reasons, I should hesitate to extend it to a case to which it had not hitherto been applied. But I find that it is considered to prevail in the ecclesiastical courts in England, which courts, as is well known, have the jurisdiction of admitting wills of personal property to probate, exercising, in that respect, substantially the same jurisdiction which the statute of this State has vested in the Surrogate. A case referred to from the reports of these courts appears to me to recognize the rule as I have stated it to prevail in the late Court of Chancery. In Arnold v. Earl & Newbee (2 Lee, 380), there was a citation to prove a will, and the question was, whether Newbee, one of the parties proceeded against, as a next of kin of the deceased, could be sworn on behalf of the executor, who propounded the instrument. Newbee appeared, declared he would not oppose the will, and prayed to be dismissed, so that he could be a witness for the executor. The motion was opposed on behalf of another party, who appeared as next of kin. There was no suggestion that he was a competent witness while he remained a party to the proceeding; but the judge said that, having declared he would not oppose the will, he had judicially bound himself, and had thereby fully answered the purpose for which he was cited. He was, therefore, dismissed as a party, and was then sworn as a witness. The motion and the order would be absurd, if the general rule were not that a party to such a proceeding was incompetent to be sworn as a witness. In Brush v. Holland, Mr. BRADFORD, late Surrogate of New York, had occasion to examine this question incidentally, and concluded that none of the parties to a probate proceeding were competent witnesses. (3 Bradf., 240.) 1. SMITH.-VOL. IX. Talbot v. Talbot. In the present case, the widow of the alleged testator was a necessary party. She had not declared she would not oppose the probate, though she did not appear and offer any actual opposition; and no order had been obtained, dismissing her from the proceeding. The opposition which was actually offered by the other parties, however, inured as fully to her benefit as though she had formally appeared. I am, therefore, inclined to the opinion that, as the case then stood, she was incompetent to give testimony for another party, cited as a next of kin to attend the probate. But I think, also, that she was an interested party. As the widow of the deceased, she was, prima facie, entitled to a share of his personal estate. But against this claim there were two wills, in each of which she was cut off, so far as regards personalty, with a nominal legacy. If the second will, which was sought to be proved, was valid, her claim was barred. If that will was invalid, perhaps the former one, if itself otherwise a valid will, would stand unrevoked, and she would still be barred. But the question as to the validity of the first will was not on trial. If, in the actual proceeding, the judgment had been against the will, the first one would not be judicially established. It would require to be propounded for probate, and then an opportunity would be afforded to attack it on the ground of want of testamentary capacity. If the intention of the widow was to contend for intestacy, both wills must be opposed, as they should successively be presented for probate. She had an interest to defeat the will now in question, for that would remove one obstacle in her way. If established, it would furnish a conclusive bar to her claim; but if defeated, her claim would be perfect, unless probate of the other will could be obtained. Now, a considerable part of the evidence which was given upon the question of capacity covered the period during which both the wills were executed. Charles Talbot, it is true, would not probably have opposed the first will, because in that he shared the estate equally with his brother; but the widow and the other next of kin, besides her sons, had a direct interest to oppose that will when propounded |