George W. Hargrove, tbe brother of testatrix, and father of the caveators, left his home in Sampson County, North Carolina, in 1877, or 1879, and went to Texas. The caveators introduced in evidence over the objection of the propounders an affidavit purporting to have been made by George W. Hargrove, and recorded in Deed Book TT-2, pp. 579 and 80, of the public records of the clerk of the county court of Lamar County, Texas. This affidavit is as follows: “State of Texas — • county of Lamar County, Texas. Know all men by these presents: That I, G. W. Hargrove, now residence in said county and state, the said G. W. Hargrove, being a son of Benj'amin Hargrove of the State of North Carolina and County of Sampson, the said Benj'amin Hargrove being deceased, his property being proportioned amongst his heirs, to wit: John A. Hargrove, William H. Hargrove, George W. Hargrove, Elizabeth J. Hargrove, and Susan H. Hargrove in the prorata of said property each, of the heirs were perfectly satisfied with their part of said property, the said G. W. Hargrove, did bargain, sell and convey to said Elizabeth J. Hargrove his interest in said estate through Judge A. A. McCoy him the said judge having a power of attorney to settle off all debts that had accrued against said G. W. H. the amount of such was $1,000, one thousand dollars the said A. A. McCoy by my consent the said G. W. H. sell and convey to said Elizabeth J. Hargrove 430 acres of land in said county and State of N. C. situate 10 miles east of the county side and also where the Wilmington and Raleigh Co. roads cross the Goldsboro and Clinton Co. R. the boundaries of said land on the south the Goldsboro and Clinton R., on the east it extends to the six runs Chappel on the north B. S. H. Hargrove line on the wrest by a creek known as the Six Runs conditions of sale of said property, to wit: The said G. W. H. sold this said property to said E. J. H. for the sum of $2,600, twenty-six hundred dollars, whereas as $1,000 was cash and the remainder $1600 sixteen hundred in three notes, to wit:.One for $900.00, one $500.00 and one $200.00, all three of notes were given payable on day after date with interest from date at 6 per cent these notes were given 20 December, 1879, in the city of Memphis, Tenn., whereas, said E. J. Hargrove has held said notes until 1 December, 1884, when the said G. W. H. such said notes to said E. J. H. Said notes retain liens on said property until paid. She E. J. H. states that the notes never reached their destine therefore I make this statement in case I should die before the matter is fixed up. Whereas, I, the said G. W. Hargrove, married George Ann the daughter of E. C. Allen of the State of Texas and county of Lamar and the said G. A. H. as being my lawful and weded wife becomes heir to said property at my death and if I should die before this matter is settled the undersigned *76one will administer on my estate and pay to said as now Mrs. G-. A. Hargrove tlie same tbis 2 April, 1885. Gr. W. Hargrove.”
Tbe caveators further offered in evidence the power of attorney, executed by G-. W. Hargrove on 25 January, 1879, and recorded in Book 46, page 33, of the public record of Sampson County.
After the affidavit had been offered in evidence and on the second day of the trial, the court instructed the jury as follows: “The court charges you that these ¡portions of the dejiosition referring to the evidence and referring to the paper-writing, purporting to be a marriage license, and these exhibits attached to the deposition, marked Exhibits “A” and “B,” are to be considered by you, if at all, to show the blood kinship between the caveators and the deceased, Miss Sudie Hargrove, if these paper-writings and evidences of paper-writings do tend to show. “Other than for the above purposes, the evidence of the paper-writings are withdrawn from the consideration of the jury.”
From the foregoing ruling of the court the question arises: Was the evidence competent?
Obviously, it was not a declaration against interest, as interpreted by many decisions of this Court. Ins. Co. v. R. R., 195 N. C., 693, 143 S. E., 516. Moreover, the kinship of the caveators to the testatrix was not seriously controverted at the trial. The caveat alleged that Sudie Hargrove left surviving her “as her only heirs at law and distributees two nephews, E. C. Hargrove and B. F. Hargrove; that the said paper-writing purporting to be the last will and testament of Sudie Hargrove, devised all of her property, as appears in Exhibit “A” of paragraph 1 of this caveat.” Answering paragraph 3, the propounders said: “The respondents are not advised who are the only heirs at law and distribu-tees of Sudie Hargrove, deceased, otherwise article 3 is admitted.” As we interpret the pleadings, there was no express denial that the caveators were not the nephews of the deceased, but it was not admitted that the caveators were the “only heirs át law and distributees of deceased.” An issue was framed as to whether the caveators were the nephews and next of kin and heirs at law of Sudie Hargrove, but the record discloses that this issue was answered by consent. However, if it be conceded that such an issue was material, the next inquiry to be determined is whether the affidavit was competent to prove pedigree or blood relationship. The rule of law was clearly expressed in Jelser v. White, 183 N. C., 126, 110 S. E., 849, as follows: “Elementary principles in the law of evidence exclude declarations as to pedigree unless it can fairly be assumed that the declarant is disinterested. Hence, it must affirmatively appear that the statement was made ante litem, moiam; and this expression is not restricted to the time of bringing suit, but is referred to the beginning of the controversy.” The substance of the affidavit is *77tbat George "W". Hargrove, father of caveator, bad not been paid for bis share in bis father’s estate, and tbat bis interest in the estate subsisted. Manifestly, the evidence discloses upon its face tbat the declarant was interested in the estate of bis father, and the paper-writing was executed and recorded for the express purpose of preserving the evidence of the controversy. Furthermore, the caveators are not named in the affidavit and the paper-writing expressly declared tbat the wife of the declarant “as being my lawful and weded wife, becomes heir to said property at my death, and if I should die before this matter is settled, the undersigned one will administer on my estate and pay to said as now Mrs. G. A. Hargrove the same.” Indeed, the affidavit was wholly hearsay of the clearest type, and bad no bearing whatever upon the mental capacity of the testatrix, which was the only material subject of inquiry at the trial.
There are many other exceptions earnestly debated by counsel on both sides, but as a new trial must be awarded, the court deems it inadvisable to discuss these exceptions for the reason that it is wholly impossible to anticipate what evidence will be offered at the next trial, or whether the same exceptions will be presented in similar form.
New trial.