Note on who is incompetent.

NOTES OF OTHER RECENT CASES, ON WHO IS DEEMED INCOMPETENT AGAINST

AN ESTATE, ETC.

I. Party, or person under whom a party claims :

Colorado: Cooper v. Wood, 27 Pacific Rep., 884 (in a suit against the surviving partner and the representative of the deceased member of a firm, the survivor is an incompetent witness to establish the partnership with deceased). Georgia: Hooks v. Hays, 1891, 13 Southeast. Rep., 134 (a person not a party or interested may testify as to a transaction with deceased). Illinois: Robnet v. Robnet, 43 Ill. App., 191 (in an action against a decedent's estate for services the administratrix is not disqualified from testifying in plaintiff's behalf). Indiana: Scott v. Harris, 1891, 27 Northeast. Rep., 150 (in partition of decedent's lands upon the issue as an advancement to a son, the widow, though a party to the action is not interested). Kentucky: Beach v. Cummins, 1892, 18 Southwest. Rep., 360 (in a suit by two beneficiaries against the executor of deceased trustee to establish the trust, each may testify in favor of the other as to conversations with deceased). Michigan: Penny v. Croul, 1891, 49 Northwest. Rep., 311 (in an action to recover bonds delivered by plaintiff's intestate to defendant, defendant may testify that he held them as an executor of another; the contest being between the two estates, defendant is not an "opposite" party). Minnesota: Darwin v. Keigher, 45 Minn., 64; s. c. 47 Northwest. Rep., 314 (an agent of a party is a competent witness as to transactions with deceased); Bowers v. Schuler, 1893, 55 Northwest. Rep., 817 (a party to an action means a party to the issue to which the testimony relates and not a mere party to the record). Missouri: Baer v. Pfaff, 44 Mo. App., 35 (agent of a party is a competent witness as to transactions with deceased); Ford v. O'Donnell, 40 id., 51 (a person not a party or interested is a competent witness as to a transaction with deceased). New York: Porter v. Dunn, 131 N. Y., 314; s. c. 30 Northwest. Rep., 122 (in an action by a husband suing the representatives of deceased for the loss of his wife's services, the wife is a competent witness); Kelsey v. Cooley, 58 Hun, 601; s. c. 11 N. Y. Supp., 745 (a party is a competent witness when not examined in his own behalf); s. p. Davis . Gallagher, 55 Hun, 593; s. c. 9 N. Y. Supp., 11; Gennerich v. Ulrich, 12 N. Y. Supp., 353 (in partition of the property of a deceased person, the executor of a mortgagee set up a mortgage on the widow's interest. Held, that the executor was a party interested and could not testify as to conversations with the deceased husband to show his knowledge of the mortgage); Pandjiris v. McQueen, 37 State Rep., 602; s. c. 13 N. Y. Supp., 705 (where separate claims of a physician and a nurse, presented against decedent's estate, were referred to the same referee. Held, that the nurse was competent to testify for the physician); Wilcox r. Corwin, 117 N. Y., 500; s. c. 23 Northeast. Rep., 165 (in an action on a joint note

Note on who is incompetent.

against the surviving maker and executor of deceased maker, the survivor cannot testify as to transaction with the deceased to show his liability); Conner v. N. Y. City, 19 N. Y. Supp., 85 (in action against a city to recover the salary of plaintiff's intestate, as assistant engineer, the chief engineer may testify as to intestate's discharge); Godine v. Kidd, 19 N. Y. Supp., 335 (in an action to enforce an agreement to leave property to an adopted child, the natural mother, who made the contract with deceased for the child's benefit, may testify as to the transaction in her child's behalf); Rice v. Daly, 20 id., 941 (in an action on a bond and mortgage plaintiff cannot testify in support of them as to a transaction with the deceased mortgagee under whom defendant claims); Eighme v. Taylor, 68 Hun, 573; s. c. 23 N. Y. Supp., 248 (a party though he acquired his interest in the subject matter of the action after the conversation with deceased which he seeks to prove is an incompetent witness as to what was said); Matter of Gagan, 20 id., 426 (an executor is not a party in interest to a proceeding for the probate of the will); Matter of Bedlaw, 67 Hun, 408; s. c. 22 N. Y. Supp., 290 (parties resisting a testamentary disposition are not competent to show that the facts stated by the testator as the reason for the gift were untrue). North Carolina: Bunn v. Todd, 107 N. C., 266 (a person not a party or interested is a competent witness as to transactions with a deceased person). Pennsylvania: Arrott, etc., Mills Co. v. Way Manuf'g. Co., 143 Pa. St., 485; s. c. 22 Atlantic Rep., 699 (to show the terms of an oral lease from a deceased person in an action for rent by his successor, as member of a limited company, defendant cannot testify as to conversation with deceased); South Carolina: Wood v. Wood, 25 S. C., 600 (in contest between two claimants under a deceased obligee in a bond, the obligor, though a party, is not interested and may testify as to a conversation between himself and the deceased obligee. United States: Snyder v. Fiedler, 139 U. S., 478 (when plaintiff, an administratrix, resigns, pending the action, and an administrator de bonis non is appointed and allowed to prosecute in her place; she ceases to be a party and becomes a competent witness); Kingsbury v. Buckner, 134 U. S., 650 (a husband, who joins his wife in a cross bill to enforce a trust for her benefit alone against decedent's estate is not an "adverse party" under Ill. Pub. L., 1867, p. 183, § 2). West Virginia: Quarrier v, Quarrier, 1892, 15 Southwest. Rep., 154 (one, who is apparently a first indorser, cannot testify against the estate of deceased second indorser to show that the latter became bound as joint guarantor or promisor with the maker); Patterson v. Martin, 33 W. Va., 494; s. c. 10 Southwest. Rep., 817 (party, though having no interest in the result is incompetent). Wisconsin: Hanf v. Northwestern, etc. Ass'n., 1890, 43 Northwest. Rep., 315 (agent of party may testify in his behalf as to a transaction with a deceased person); s. p. Gifford v. Thomas, 2 b., 1890, 19 Atlantic Rep., 1088. II. A person interested in the event:

Alabama: Espella v. Richard, 1892, 10 Southern Rep., 137 (disinterested witness may testify in behalf of a party as to his transactions with de

Note on who is incompetent.

ceased); Morris v. Birmingham Nat. Bk., 1891, 9 id., 606 (in an action by an indorsee against a deceased indorsee, the maker of the note is not interested, and may testify that the note was made for the deceased's accommodation.) Illinois: Sherret v. Royal Clan, 37 Ill. App., 446 (in an action against a benefit society, a member liable to assessment not interested); Bevan v. Atlanta Nat. Bk., 39 id., 577 (where decedent's signature to a note is in dispute, holders of the other notes purporting to be signed by him are not disqualified as witnesses). First Nat. Bk. of Morrison v. Bressler, 38 id., 499 (in trover by an administrator against a bank for notes of decedent pledged by his son, the payee of the note, though not a party, but who has paid interest to the son, cannot testify as to decedent's declarations to show the son's authority). Bressler v. Baum, 42 id., 190 (in an administrator's action to recover the value of notes converted, the maker and others adversely interested to the administrator should not be allowed to testify in behalf of defendant). Graves v. Safford, 41 id., 659 (an heir's husband is a competent witness for administrator). Indiana: Sullivan v. Sullivan, Ind. App., 1893, 32 Northeast. Rep., 1132 (in an action against an administrator or executor, an heir or legatee may testify for defendant). Iowa: Boot and Shoe Manuf'g. Co. v. Seevers, 1892. 52 Northwest. Rep., 555 (in action for debt, continued against an administrator of one charged as a partner, a member of the firm, though not brought in as a party cannot testify as to the partnership in behalf of plaintiff). Minnesota: Bowers v. Schuler, 1893, 55 Northwest. Rep., 817 (the interest of witness to disqualify must be a direct and immediate pecuniary interest adverse to the party against whom the testimony is offered). Missouri: Leach v. McFadden, 1892, 19 Southwest. Rep., 947 (in an action against an executor's sureties, the executor, though not a party, cannot testify in defendant's behalf as to payment to plaintiff's deceased agent). Fuchs v. Fuchs, 48 Mo. App., 18 (in action to specifically enforce an agreement to will property, plaintiff's mother who has no interest in the action is a competent witness). New York: Beakes v. Da Cunha, 126 N. Y., 293; s. c. 27 Northeast. Rep., 251 (in an action upon decedent's guaranty, the person whose debt is guaranteed is not interested). Bowen v. Sweeney, 63 Hun, 224; s. c. 22 Civ. Pro. R., 79; 17 N. Y. Supp., 752 (a husband is not disqualified by reason of his right, as tenant by courtesy initiate from testifying in support of a will in which his wife is devisee as to acts of testatrix). Matter of Lasak, 131 N. Y., 624; s. c. 30 Northeast. Rep., 112 (where one as legatee would have the income on one-third of the estate for life, but if the will was overthrown would as heir be entitled absolutely to one-fifth of it, held, that she was interested in the overthrowing of the will). Hoffman v. Hoffman, 18 N. Y. Supp., 387 (in ejectment where defendant claims under oral agreement with plaintiff's deceased vendor, defendant's wife cannot testify as to transaction between deceased and defendant). Whitman v. Faley, 125 N. Y., 651; s c. 26 Northeast. Rep., 725 (in foreclosure the husband of a defendant who acted as wife's agent, is not interested). Fogal v. Page, 37 State Rep., 280; s. c. 13 N. Y., Supp., 656 (a husband is not interested in action of wife to recover money

Note on who is incompetent.

paid upon purchase of real estate). Luetchford v. Lord, 132 N. Y., 465; s. c., 30 Northeast. Rep., 859 (in foreclosure of a mortgage made by husband and wife on the wife's land, the husband is not a competent witness against deceased mortgagee to show that the mortgage was given for his gambling debt, as it would release him from personal liability). Eisenlord v. Clum, 126 N. Y., 552 ; s. c. 27 Northeast. Rep., 1024 (in ejectment by an heir, his mother is a competent witness on the question of his legitimacy to prove her marriage with deceased, since the judgment therein would not be admissible in any action for dower). Connally v. O'Conner, 117 N. Y., 9; s. c. 22 Northeast. Rep., 753 (the mother of a bastard is not interested in a suit against the administratrix of the putative father on his alleged contract to support the child). Korminsky v. Korminsky, 2 Misc., 138; s. c. 21 N. Y. Supp., 611 (in an action to enforce an agreement by plaintiff's deceased father to will them certain lands, plaintiff's sisters who have deeded over their interest in the lands without consideration may testify as to conversations with their deceased father in relation to the agreement). Richards v. Crocker, 20 id., 954 (in an action to recover land, neither defendant, nor his brother to whom the land would descend if plaintiff's deed from their deceased father proves invalid, can testify as to their father's mental and physical condition when he made the deed to plaintiff). Payne v. Kerr, 21 id., 800 (an attorney at law may testify as to an oral agreement which he made with a deceased person in behalf of his client). Pennsylvania: Keener v. Zartman, 144 Pa. St., 179; s. c. 22 Atlantic Rep., 889 (in an action for debt against an administrator, an intestate's son is interested and cannot testify for defendant). Gerz v. Weber, 151 Pa. St., 396; s. c. 25 Atlantic Rep., 82 (in an action against an executor a legatee may testify that the claim was paid in testator's lifetime). Dickson v. McGrau, 151 Pa. St., 98; s. c. 24 Atlantic Rep., 1043 (where an execution creditor sought to show that a former sale of the property through which defendant claimed was made in fraud of creditors, the original owners have no adverse interest which prevents them from testifying as to a transaction with the first purchaser prior to his death). Matter of Taylor's Estate, 154 Pa. St., 183; s. c. 25 Atlantic Rep., 1061 (where a decedent drew a check to a person in order that he might make a payment to another to whom decedent wished to give a sum of money, the payee of the check is not beneficially interested therein and may testify as to decedent's declarations when he drew it). Fowler v. Smith, 153 Pa. St., 639; s. c. 25 Atlantic Rep., 744 (in an action by an executrix, the brother of defendant is a competent witness in his behalf in absence of any interest in suit). Vermont: Manley v. Staples, 1893, 26 Atlantic Rep., 630 (one who has made a contract with another for the latter's support in consideration of property conveyed is a competent witness upon the contest of the probate of the will of the person to be supported which recites that it confirms and approves the contract, and bequeaths to the witness testator's personal property; as the establishment of the will if it can have any effect on the contract, can only do so incidentally and collaterally). Smith v. Pierce, 1893 (the person who wrote letters for

Note on who is incompetent.

another, since deceased, in which the latter promised the plaintiff to leave him all his property in consideration of support, is a competent witness to show that deceased authorized the letters to be written and sent).

III. Other recent cases:

Removal of disqualification by release of interest. Moore v. Schofield, 96 Cal., 486; s. c. 31 Pacific Rep., 532 (in an action against co-contractors, where one dies pending the action, and the action is renewed against his administrator, the surviving contractor, though a judgment has been rendered against him by default, is not a competent witness for the plaintiff); La Prad v. Sherwood, Mich., 1890, 44 Northwest. Rep., 943 (in suit to set aside a mortgage for agent's fraud, agent cannot be dismissed from the case by the filing of a disclaimer so as to enable him to testify as to a transaction with deceased); Fink v. Hey, 42 Mo. App., 295 (in an action by an unincorporated society, upon a bond of a deceased person, members of the society at the time of its execution, but not at the time of trial, are competent to testify as to the bond's execution by deceased, otherwise as to those who continued to be members); Ehmann v. Scheuerman, N. Y. 14, Daly, 411 (in an action against a surety the principal in whose favor the statute of limitations has run, is not interested in the event); O'Brien v. Weiler, 68 Hun, 64; s. c. 22 N. Y. Supp., 627 (in an action to recover a debt due the estate of testator, a legatee who relinquishes her interest in the fund in controversy without releasing her interest in the rest of the estate becomes a competent witness for plaintiff); Keener v. Zartmann, 144 Pa. St., 179; s. c. 22 Atlantic Rep., 889 (where a claim is made against deceased father's estate, a son who has received real property from the father which may be liable for his debts, is disqualified, though the son has assigned his interest in his father's estate); Hutchinson v. Brown, 19 D. C., 136 (in an action by an executrix on a joint or joint and several promise, one defendant cannot, by confessing judgment without plaintiff's consent, make himself competent to testify on behalf of his co-defendant); Turnstall v. Withers, Va., 1890, 11 Southeast. Rep., 565 (in a suit to enforce vendor's lien, vendee is incompetent, though the claim against him was barred by limitation, and his interest in the suit was only as to costs).

IV. Objection, how raised:

McHugh dence by a claimant against a decedent's estate, which was equally within decedent's knowledge, should not be received, though the administrator does not object); Perine v. Grand Lodge, etc., Minn., 1892, 50 Northwest. Rep., 1022 (the burden is on the party objecting to show witness' interest, and if it is not shown sufficiently he may testify); Reynolds v. Reynolds, 45 Mo. App., 622 (where surviving party to a contract is offered as a witness concerning it, he must bring himself within some exception to the statutory rule, and offer to contradict assertions he is said to have made is too general); Norris v. Stewart, 105 N. C., 455; s. c. 10 Southeast. Rep., 912 (a general objection that the witness is interested is not sufficient).

v. O'Dowd, Mich., 1891, 49 Northwest. Rep., 216 (material evi