This was an appeal from the decree of the judge of probate of the county of Hampshire, by which he declined, on account of interest, to take jurisdiction of the
I. A preliminary motion is made, by the respondents, to this court, to dismiss this appeal, on the ground that the inhabitants of the six towns, who claimed the appeal, had no interest in the will, and were not aggrieved parties, within the meaning of the law, (Rev. Sts. c. 70, § 36; c. 83, § 34;) entitled to an appeal. The town of Amherst is not one of those that claimed this aрpeal.
Without considering, at present, the case of other towns named in the will, we find, in looking into the will, a large pecuniary bequest, payable at a future and distant day, directly to the inhabitants of Nоrthampton, in their corporate capacity. This, it is true, is in trust to establish certain agricultural institutions; but as the legal estate must vest in the town, and as they have perpetual succession as a corporation, we think the corporation has now such an interest in said will, as warranted them in an appeal from a decree declining to admit it to probate. And if any one of the parties, сlaiming an appeal, had a right to do so, then the whole case is removed, and this court, as the appellate court, has jurisdiction-
II. But the great question, and the one raised on the appeal, is, whether the judge of probate, as an inhabitant of the town оf Amherst, and a member of that municipal corporation, had such an interest in this will, within the meaning of the statute, as to supersede his jurisdiction of the probate of the will, and transfer it to another county.
It is true that the plain dictates of natural justice, independently of all articles of magna charta, bills of rights, or other provisions of positive law, require that a man shall not be judge in his own cause. And it is only a just application of this principle, that he shall not sit in judgment in deciding a question, in which he has a personal interest. But this, like all other very general propositions, in order to make it the basis of a practical rule, must have a reasonable construction, and must be taken, not as absolute and invariable, but with all necessary and implied qualifications. If the term “interest ” were used in the loose sense it sometimes is, consisting in a strong and sincere dеsire to promote all enterprises for the advancement of learning, philanthropy, and general charity, or a similar interest, with all good men, to repress and put down pernicious and mischiеvous schemes, no man could be found, fit to be intrusted with the administration of justice • for no man can be exempt from such interests. But, even where there are pecuniary interests, there must be some exсeptions ; as when the Commonwealth is a party in a criminal prosecution or a penal action, where the penalty enures to the State, and all civil suits on recognizances and othеr debts,
We are then to consider what is the nature of the interest, intended by Rev. Sts. c. 83, § 15, which shall take the case out of the jurisdictiоn of the judge of probate, and transfer it to the court of probate of an adjoining county.
1. We think it is not to be a mere possible, contingent interest ; not an interest in the question or general subjeсt, to which the matter requiring adjudication relates; but one that is visible, demonstrable, and capable of precise proof. Cottle, Appellant,
2. It must be a peсuniary or proprietary interest, a relation by which, as a debtor or creditor, an heir or legatee, or otherwise, he will gain or lose something by the result of the proceedings, in contradistinctiоn to an interest of feeling, or sympathy, or bias, which would disqualify a juror. Smith v. Bradstreet,
3. It must be certain, and not merely possible or coutingent.
It may be, and probably is, very true, as the human mind is constituted, that an interest in a question or subject matter, arising from feeling and sympathy, may be more efficacious in influencing the judgment, than even a pecuniary interest; but an interest of such a character would be too vague to serve as a test by which to decide so important a question as that of jurisdiction ; it would not be capable of precise averment, demonstration and proof; not visible, tangible, or susceptible of being put in issue and tried ; and therefore not certain enough to afford a practicаl rule of action. It is like the principle applying to the case of the competency of a ivitness ; a direct pecuniary interest, however small, on being proved, renders him incompеtent; but the strongest interest from sympathy, from interest in the question, and even an expected interest in the property in controversy, not yet vested, does not render him incompetent.
On examining this will of Oliver Smith, we cannot perceive that it vests any pecuniary interest, legal or beneficial, in the towns named, other than Northampton. The will provides for the future annual distribution of considerable sums of monеy, in charity, for the relief and assistance of various classes of indigent persons to be selected from those residing within the limits of these towns. But the distribution of a sum of money within the limits of a town, although it may give a spring to business, and indirectly benefit the inhabitants, as members of society, and holders of property, yet is not a direct pecuniary interest to the town in its corporate capacity, through which its members derive a pecuniary interest. And although it may be said, in a loose sense, that
The court are therefore of opiniоn, that the town of Amherst, as a municipal corporation, in its corporate capacity, takes no pecuniary interest, legal or beneficial, under this will, and that, of course, Mr. Conkey, judge of probate, as an inhabitant of that town, takes no such interest; that he is not prevented from taking jurisdiction of the probate of this will; and that no other probate court of the Commonwealth cаn take jurisdiction of it.
The decree of the probate court is reversed, and the case remitted to that court, for further proceedings, in the probate of said will, and the settlement of the said Oliver Smith’s estate.
Notes
Dewey, J. did not sit in this case.