p. 394directly interested in the event of this suit. The verdict and judgment would be evidence in a suit by her in respect of this estate, even if she was not made a party here. Being under age she could hereafter controvert this will, and the verdict would be evidence for her. (7 Term Ref. 56.) The principles governing contracts apply to this case. The act she now is brought forward to perform is an act to be done under the sanction of the court, and the court will prevent her doing any act to her prejudice. Wherever an infant’s contract is judged by the court beneficial, it is binding; if the court doubts of its beneficial character, it is voidable; and if it appears to the court to be against the minor’s interest, the contract is void Now can it be possible, that in a case where the court would avoid an infant’s contract as void ab initio, it will allow her to do an act in court to her prejudice. This witness is an heir at law, and entitled to a portion of the estate, if the will be set aside. She is no devise under the will, and is now offered to set up the will against her owr interest. (2 Hen. Blac. 511, 515; 2 Kent’s Com. 238-4, 243.) Thi; witness is already under the protection of a next friend, and the policj of the law requires that she shall be allowed to do no act withou his consent. If this witness had been a legatee under the will, she could not, even with her consent, have testified against the will, be cause being an infant, she could not release; so being interestec against the will she cannot give evidence for it, because being ai infant, she cannot consent to waive her privilege.
Frame, Cullen and Bates, contra.
This infant, now nearly a youn| lady, became voluntarily a witness to her uncle’s will. She is a one of the instrumentary witnesses, all important as a witness to b< examined. A suit is brought by the heirs at law of the uncle, o whom this witness is one, against the will, and she is made a part; by next friend, without any act or consent on her part. The cas< comes on for trial and the infant voluntarily comes forward to stair by her signature, though against her interest, and give evidence.
The matter has been treated as in the nature of a contract, whic it by no means resembles. No contract or even consent is requisitl in the matter; the witness is called, and unless she sets up her prtI tection — unless she refuses to testify, she must be sworn. Then ho does it stand! It has been treated as if it was an act which the i: fant could not do without other help. Yet an infant can give dence. The only question is, has she years of discretion to testifj not to make a contract; and all such are witnesses, even though inte
p. 395ested, unless they refuse, on sufficient grounds, to testify. The court can ascertain by examination whether the witness has been imposed on to get her consent to testify.
When a party becomes a subscribing witness to a will, it is not in the power of such witness to refuse to give testimony against his lown interest. Other parties have an interest in this testimony. (3 Tem Rep.'37, Bent vs. Baker; 2 Stark. Ev. 749-50-51.) A party is not necessarily excluded from testifying. A party to "the record ¡may consent to give evidence against his interest. A party in inter-jest, though not of record, may be examined against his interest and ¡against his consent. (1 Taunt. 377; 20 Com. Law 177.)
How is this person necessarily a party to this suit? All the heirs it law may sue together, or each separately. There was no necessity to make her a party. And if the will were set aside on the review of other parties, this witness would have the benefit of that delusion, because the verdict and judgment could be given in evidence lor her in an action against the administrator. Being a proceeding In rem it would effectually set aside the will — restablish an intestacy; rad thereby establish her right.
By the Court:
-The question has been argued whether a barty can by his own consent be examined against his interest without the consent of his co-parties, and an express authority is. cited iat he cannot, (8 Taunt. Rep. 141;) but conceding that this is not ie law, as I think it is not, and that a party may be so examined nth his own consent; the question still remains, whether an infant |arty can consent to such an examination.
This is an issue sent to us by the register to try'a certain question, ’he register has made the parties to that issue, and among them we [nd Mary Ann Rickards, an infant under the age of twenty-one (ears, by her next friend, Isaac Bradley, as a party plaintiff. Whether Ightly or not, she is made a party to this suit; but, apart from that, appears to us that she is a party in interest and entitled, if the will set aside, to a portion of the testator’s estate. She was, therefore, roperly made a party. Mary Ann Rickards is a witness to the Jill; and is willing to testify in favor of the wall and against her in-Irest. But she is an infant, and the question is, whether standing as le does before us as a party not only in interest but of record, a Irty by next friend to supplv her rvant of capacity to do any legal
p. 396act, whether she can
consent to be examined against her interest, and to defeat her rights as heir at law.
Ridgely, Wootten and Fisher, for the will.
Cullen, Frame and Bates, contra.
We take the law to be that a party of record may be examined with his consent to testify against his interest; but he cannot be compelled to do so, and his voluntary consent is absolutely requisite. For as his declarations would be evidence against him and his co-pai’ties, his oath may also be admitted, but both declarations and oath must be voluntary. Now an infant has no legal volition; she cannot consent to give evidence in this cause to defeather rights any more than she could release her rights, or defeat them by any formal legal instrument. And as the court would vacate any instrn ment executed by her to the prejudice of her interest, it will with only an equal regard to her interests and want of capacity, prevent her doing any act which would have the same effect. Perhaps I might more properly say, that the court will only refuse to recognize her l’ight to do an act which requires judgment and discretion, that th law does not allow to persons under age.
Witness rejected.
The counsel for the will now called Isaac Bradley, the next friend! and asked his consent to the examination of Mary Ann Rickardsl This was objected to, and the court said it was no matter whetbef the next friend consented or not. The witness was an incompetenl witness, and could not whilst she remained a party of record, be| come competent until her disability to consent was removed.
The will was finally confirmed.