The opinion
ClakK, C. J.,
dissenting: This action is brought by the plaintiff as executrix of her mother, Denie T. Brown, and by herself, individually, for services rendered decedent, J. E. S. Adams, who has died since this action was begun, and his executrix, Mary Adams, is substituted as party defendant.
The evidence of the plaintiff was that J. E. S. Adams was an old man and in poor health, living with his sister (now his executrix), who was also old and in bad health; that said Adams made a bargain with the plaintiff’s mother that if they would live with them and take care of him and his sister he would leave to Denie Brown his property at his death. There was evidence that he made such will, but that after the death of Denie Brown he tore up said will, and this action is brought to recover value of the services rendered under said contract by plaintiff and her mother.
The first seven exceptions are to the admission of the testimony of the plaintiff, Maggie Brown, who testified as to the conversation between her mother and J. E. S. Adams in making the contract. The defendant contends that this evidence is incompetent, under section 1631 of the Eevisal, because the plaintiff is interested as a party to the action and is testifying against the estate of one now deceased. The conversation, however, was not between the plaintiff witness and the decedent (the testator of the defendant), and the evidence was therefore competent.
In Ballard v. Ballard, 75 N. C., 191 , Bynum, J., says, in substance, that it is not by being a party to the action, or interested in the event, that one becomes disqualified; for, notwithstanding that fact, he is competent, except as to a transaction or communication between such *502 witness and the person deceased. This section is analyzed in Bunn v. Todd, 107 N. C., 266 , where it is held that a person who is interested, or a party, is competent to testify against the estate of a person deceased, when the conversation or transaction is not between the witness and the deceased, but between the deceased and another party. The principle of the Code system is the general competency of testimony, though the witness is a party or interested in the event of the action, leaving its credibility to the jury, the only exception being where the witness is not only a party to the action or interested in its event, and is testifying in his own interest and against the interest of the person deceased, but, further, the testimony must be in regard to a transaction or communication between the witness and the person since deceased; otherwise, the testimony is competent. The provision being statutory, the court must observe it, and cannot exclude evidence except when authorized by its terms.
In Johnson v. Cameron, 136 N. C., 244, the exact point was discussed and decided, the Court saying: “The Code, sec. 590 (now Revisal, 1631), disqualifies a party to an action, or one interested in the event thereof, from testifying in his own interest against the person claiming adversely as to ‘a. personal transaction or communication between the witness and the deceased person or lunatic/ except when the executor of such opposing party or the testimony of the deceased person or lunatic is given in evidence concerning the same transaction or communication. But here the witness testified as to no transaction or communication between herself and W. M. Cameron. It was a transaction between W. M. Cameron and her husband, and as to that she was a competent witness, notwithstanding her interest. Dobbins v. Osborne, 67 N. C., 259 ; McCall v. Wilson, 101 N. C., 600 ; Loftin v. Loftin, 96 N. C., 99 , are in point, as, also, Ballard v. Ballard, 75 N. C., 191 (quoting Bynum, J., ut supra),”' and citing, further, Peoples v. Maxwell, 64 N. C., 313 , where such witness was held competent to prove the handwriting of the deceased, and Bright v. Marcom, 121 N. C., 86 , where an interested witness was allowed to prove the delivery of a deed between the deceased and another. Lane v. Rogers, 113 N. C., 171 .
In Hallyburton v. Dobson, 65 N. C., 88 , relied upon by the defendant, the point was not decided. Johnson v. Cameron, supra, has been cited since with approval by Allen, J., in Carroll v. Smith, 163 N. C., 205 , and by Walker, J., in Zollicoffer v. Zollicoffer, 168 N. C., 329 , who cited, also, the other cases above quoted. In Wilson v. Featherstone, 122 N. C., 749 (prior to Johnson v. Cameron), Faircloth, C. J., seems to take a different view. But the statute is so plain that we cannot disregard it, and should hold that case an inadvertence, which we cannot approve.
*503 "While there has been some conflict in the past in our decisions on this point, it has been settled in accordance with the decision in Johnson v. Cameron, 136 N. C., 243 , by the last two opinions in this Court, which have cited it with approval.
In Carroll v. Smith, 163 N. C., 205 , Allen, J., says: “The evidence of the widow was objected to, under section 1631 of the Eevisal, but she did not testify to a communication of the transaction with the deceased. Johnson v. Cameron, 136 N. C., 243 .”
In Zollicoffer v. Zollicoffer, 168 N. C., 329 , Walker, J., says: “As to the question of evidence, we think the court confined the testimony of-plaintiff, D. B. Zollicoffer, to what occurred between Mrs. Thomas and the defendant, E. T. Zollicoffer, and in this view there could be no valid objection to it, as the witness was not speaking of any communication or transaction between him and Mrs. Thomas, hut of one between her and a third party. Johnson v. Cameron, 136 N. C., 243 ; Bunn v. Todd, 107 N. C., 266 ; Dobbins v. Osborne, 67 N. C., 259 ; McCall v. Wilson, 101 N. C., 600 ; Loftin v. Loftin, 96 N. C., 99 ; Ballard v. Ballard, 75 N. C., 191 .”
Besides, Johnson v. Cameron, thus approved to date, is in conformity with the exact language of Revisal, 1631 (Bunn v. Todd, 107 N. C., 266 ), and the statute should have precedence over any conflicting decisions.