delivered the opinion of the court.

This contest involves the question of the validity of the last will and testament of Cyrus Jones, deceased. Upon the issue made up by the parties, and referred to a jury for their decision, the verdict was against the validity of the will. A motion for a new trial was overruled by the court below, and a final decree rendered in conformity with the verdict of the jury, and the executors and devisees have brought the case to this court.

The principle question that arises upon the record, relates to the competency of a witness who was offered by the plaintiff’s in error, and rejected by the court. This witness was the surety of the executors 'in their executorial bond. One of the executors was a legatee of part of the testator’s personal estate. He was not one of the heirs, and consequently was not entitled to any part of the estate, in the event that the will was vacated. Under these circumstances the court below regarded him as being interested in sustaining the will, supposing that the extent of his liability depended on its validity. If the will should be sustained he would not be responsible as surety for that part of the personal estate which was bequeathed to the executor; but if it should not be sustained his liability would be increased, as in that event the executors would be compelled to pay the amount of this legacy, as well as the balance of the personal estate, to the distributees of the intestate, arid the surety would be responsible to them for it.

Is the surety of an executor responsible for all the estate that comes into the executors hands, in the event that the will is vacated, without any reference to the acts done by the executor, under the probate and letters testamentary granted by the county court, *472and prior to the time that any contest arises about the' validity of the will? Such acts by the executor were, in the case of Woods’ adm’r. v. Nelson’s adm’r., &c., 9 B. Monroe, 600, held to be legal and binding. If an executor, before any contest arises about the ^b^ity of a will, proceed in good faith to pay legacies, and to execute the provisions of the will, a sentence of nullity subsequently pronounced against the will would not have the effect to render the surety responsible for the estate which had been thus legally disposed of by the executor.

*472Some difficulty exists in determining the extent of the liability of a surety in a case like the present, where the executor is himself a legatee. Whether ^0 should ke regarded as holding the property bequeathed to him, as legatee or as executor, must depend on the circumstances of each case, and the decisión of this matter must govern and determine the question whether the surety is liable or not. If the executor is to be regarded as still holding the property in his fiduciary character, the surety would be liable, but if he is to be regarded as bolding and enjoying it as a legatee, then the surety would be absolved from all responsibility for it.

Where it shall be made appear that it was the duty of the executor to retain the estate bequeathed to him, in his hands as executor, it ought to be presumed that he has performed his duty, and holds the estate in his fiduciary capacity.

If the will be contested immediately after probate thereof has been granted by the county court, or if the executor be informed that such a contest will arise, then, as it would be his duty to keep the estate in his hands as executor, he should be considered as holding in that character, so much of it as is bequeathed to himself.

In this case probate of the will was made at the August county court in the year 1850, and this suit *n chancery to annul the will was commenced in Juty, 1851. The property which was bequeathed to the *473executor was not made subject to the payment of debts, but the testator directed his debts to be paid out of his other estate.. There does not appear then, to have been any reason why the executor should-have been required to keep the property in his possession as executor. Under such circumstances, and as a year had nearly expired after the grant of letters testamentary before this suit was instituted, the reasonable presumption is, in the absence of all testimony which would tend to create a different presumption, that the property was in the possession of the person to whom it was bequeathed, and that be held and used it as legatee, and, not as executor, before tbe commencement of the present suit. The consequence is, that his surety would not be liable for it, even if the wdll be annulled, and he has therefore no interest on this account in the result of the contest about the validity of the will.

The circuit court, therefore, erred in excluding the testimony of the surety on the ground that he was interested in the issue between the parties. The facts which appear in the record prove that no such interest exists. If he be liable for the legacy given to the executor, he would have an interest in sustaining the will. But the existence of such a liability will have to be established by other testimony than that contained in this record.

The instructions which were given to the jury on the trial are objected to, but they all seem to be substantially right, except the last one which was given at the instance of the complainants. That instruction is somewhat exceptionable in directing the jury that they ought to find against the will unless they believe, from the evidence, that the writing exhibited as the will of Cyrus Jones, deceased, was drawn up by his request and desire, and was executed by him, as his free and voluntary act, and that he was in a proper state of mind to make a disposition of his property according to a settled and fixed purpose of his own.

*474Three requisites to the validity of the will are prescribed by this instruction. The first one, that is, that the will must have been drawn up by the testator’s request and desire, was not absolutely indispensible to its validity. If a will be drawn up by or at the instance of the parties interested in its provisions, and not by the request and desire of the testator, it would be a strong circumstance against its validity; but still, a testator might adopt such a paper a3 his will, and if he did it understandingly, without being subjected to any undue or improper influence, and was at the time entirely competent to make a will — the mere fact that it had not been drawn up • at his instance or request would not, of itself, render the will invalid. If then, the will was not drawn up by the request and desire of the testator, this circumstance should have been considered by the jury in connection with the other facts and circumstances in the case, to enable them to decide the issue between the parties, but the validity of the will should not have.been made to depend upon this circumstance alone.

Wherefore, the decree is reversed, and cause remanded for a new trial, and further proceedings in conformity with this opinion.