Barnes v. Earle

• Decision Date: 07 December 1916
• Docket Number: No. 10709.,10709.
• Citation: 114 N.E. 168,275 Ill. 381
• Parties: BARNES v. EARLE et al.
• Court: Illinois Supreme Court

275 Ill. 381

114 N.E. 168

BARNES

v.EARLE et al.

No. 10709.

Supreme Court of Illinois.

Oct. 24, 1916.

Rehearing Denied Dec. 7, 1916.

Error to Branch D, Appellate Court, First District, on Appeal from Circuit Court, Cook County; Adelor J. Petit, Judge.

Proceedings for the settlement of accounts of Vilena H. Barnes, as administratrix of F. A. Barnes, wherein George Earle and others, creditors of the estate, objected. From a judgment of the circuit court stating an account for her in which she was charged with an amount as the proceeds of her sale of the deceased husband's property and business, she appealed to the Appellate Court for the First District, which affirmed, and to review the record brings certiorari. Affirmed.

Wentworth, Cavender & Kaiser, of Chicago, (Daniel S. Wentworth, David B. Maloney, and M. A. Natanson, all of Chicago, of counsel), for plaintiff in error.

Adams & Winnen, of Chicago, for defendants in error.

CARTWRIGHT, J.

The plaintiff in error, Vilena H. Barnes, filed in the probate court of Cook county her final account as administratrix of the estate of her deceased husband, Francis A. Barnes, in which she charged herself with $166.55 as the proceeds of a sale of the furniture and fixtures in the office of F. A. Barnes & Co. The dufendants in error, George Earle and others, creditors of the estate, objected to the account, and claimed that the plaintiff in error had sold the property and business of her deceased husband for $1,550. The court ordered the plaintiff in error to file an amended final account, which she refused to do, and the court thereupon, against her objection, stated an account for her in which she was charged with $1,033.45 as the proceeds of the sale. She appealed to the circuit court, where there was a trial by the court, resulting in the same judgment as the one appealed from. From the judgment of the circuit court she appealed to the Appellate Court for the First District, where the judgment was affirmed, and this court granted a writ of certiorari to bring the record here for review.

Francis A. Barnes and Samuel Parish were partners as real estate brokers in the city of Chicago, under the firm name of Barnes & Parish. Samuel Parish died in December, 1904, and Francis A. Barnes thereafter conducted the business under the name of F. A. Barnes & Co. On November 11, 1905, Barnes died, and the plaintiff in error was appointed administratris of his estate, and immediately after, on November 25, 1905, she sold the office furniture, business and good will to G. H. Schneider & Co. for $1,550. The office furniture had been appraised at $166.55, and the plaintiff in error charged herself with that amount. She claimed that her son, Percy Barnes, became a partner with his father after the death of Samuel Parish; that on the death of his father the partnership property, business, and good will vested in him as surviving partner; that she purchased the business and good will of him for $350, and afterward sold the same, individually and in her own right, together with the furniture, for $1,550. To prove that Percy Barnes was a partner with his father the plaintiff in error offered his deposition taken in the cause. Objection was made that Percy Barnes was incompetent as a witness, and the court sustained the objection and suppressed the deposition. The plaintiff in error also offered herself as a witness, and a like objection was made that she was incompetent to testify. The court sustained the objection and refused to admit her testimony. The court erred in each of these rulings. If Percy Barnes had had any interest in the result of the proceeding, it would not have disqualified him, because the adverse party was not suing or defending as administratrix, and the statutory disqualification is not against the party suing or defending as administrator, but against the party suing or defending adversely to the administrator. Steele v. Clark, 77 Ill. 471;Illinois Central Railroad Co. v. Reardon, 157 Ill. 372, 41 N. E. 871;Bailey v. Robison, 244 Ill. 16, 91 N. E. 98,42 L. R. A. (N. S.) 305. If Percy Barnes had come within the terms of the statute, he was neither a party to the proceeding nor directly interested in the event. The question whether his mother should be charged with all that she received from G. H. Schneider & Co. did not concern him. The estate was insolvent to the extent of more than $10,000, and he would not gain or lose by the event of the suit, and the judgment could not be given in evidence, either for or against him, in another suit. An offer was made to prove certain facts by the plaintiff in error, and it embraced some things which occurred in the lifetime of her husband concerning which she was incompetent. Schreffler v. Chase, 245 Ill. 395, 92 N. E. 272,137 Am. St. Rep. 330. She was competent to testify to matters occurring after the death of her husband, not being disqualified by any statutory provision.

If the fulings of the court in holding the witnesses incompetent and excluding their testimony was prejudicial to the...