18 D.C. 89 (D.C.D.C. 1888), 9,529, Droop v. Metzerott

Docket Nº:Equity. 9,529.
Citation:18 D.C. 89
Opinion Judge:Mr. Chief Justice BINGHAM.
Party Name:EDWARD F. DROOP v. HENRIETTA C. METZEROTT ET AL.
Attorney:Mr. A. C. BRADLEY, for complainant: Messrs. ENOCH TOTTEN and A. J. FERGUSSON for defendants:
Case Date:December 10, 1888
Court:Supreme Court of District of Columbia
 
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Page 89

18 D.C. 89 (D.C.D.C. 1888)

EDWARD F. DROOP

v.

HENRIETTA C. METZEROTT ET AL.

Equity. No. 9,529.

Supreme Court, District of Columbia.

December 10, 1888

Where executors have settled their estate, but retain control thereof as trustees under the will, in a suit in which judgment must be rendered for or against them as such trustees, and not as executors, either party may testify; such a suit is not within the provisions of Section 858 R. S. U.S. and Section 876 R. S.D. C.

APPEAL from a decree of the Special Term on a bill for an account.

THE FACTS are stated in the opinion.

Mr. A. C. BRADLEY, for complainant:

The complainant was examined as a witness in his behalf, and objection was made to his competency under Sec. 858, R. S. U.S. and the case of Page vs. Burnstine, 102 U.S. 644.

The exclusion of the act referred to only applies " in actions by or against executors, administrators or guardians, in which judgment may be rendered for or against them." With that exception only, and strictly, Sec. 876, R. S.D. C., renders the parties to suits, and all persons interested therein, competent and compellable witnesses, who are not within the exceptions named in that section.

Although the defendants, Cross and Mrs. Metzerott, are styled in the bill executors and trustees, yet they have no interest in the suit as executors. No judgment can be rendered in this cause for or against them as executors, and they are interested under the will of W. G. Metzerott herein only as trustees. By the evidence in the cause it appears that the executors settled their first and final account in the Orphans' Court, November 10, 1885, and distributed to themselves as trustees, so that, after that event, they held the entire estate as trustees. As executors they had and have nothing to do with real estate. Seegar's Exrs., vs. State, 6 H. & J., 162; State vs. Chester, 51 Md. 377; Kirby vs. State, 51 Md. 392.

Messrs. ENOCH TOTTEN and A. J. FERGUSSON for defendants:

The attitude and character of the parties before the court places them within the operation of a well-known rule of evidence. Mrs. Metzerott is the executor of the last will and testament of her deceased husband. The complainant Droop is pressing for what is equivalent to a judgment against the estate. Manifestly, Congress felt that the general rule, permitting parties to testify on their...

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