Bowen v. Goranflo

• Citation: 73 Pa. 357
• Parties: Bowen <I>versus</I> Goranflo.
• Decision Date: 17 May 1873
• Court: United States State Supreme Court of Pennsylvania

73 Pa. 357

Bowen versus Goranflo.

Supreme Court of Pennsylvania.

March 17, 1873.

May 17, 1873.

March 17th 1873.

Before READ, C. J., AGNEW, SHARSWOOD and MERCUR, JJ. WILLIAMS, J., at Nisi Prius

Error to the court of Common Pleas of Lehigh county: No. 76, to July Term 1872.

J. S. Biery and C. Albright, for plaintiff in error, cited Act of April 15th 1869, sect. 1, Pamph. L. 30, 1 Br. Purd. 624, pl. 16; Karns v. Tanner, 16 P. F. Smith 297; Post v. Avery, 5 W. & S. 509; Phinney v. Tracey, 1 Barr 175; Clover v. Painter, 2 Id. 46; Asay v. Hoover, 5 Id. 37; Haus v. Palmer, 9 Harris 298.

R. E. Wright, Jr., and E. Harvey (with whom was R. E. Wright), for defendant in error.

The opinion of the court was delivered, May 17th 1873, by MERCUR, J.

The first error assigned is as to the competency of the party to testify. He was both a devisee and the executor. It was admitted upon the argument, that if he had been the executor only, he would have been competent under the exception to the proviso of the Act of 15th April 1869, Pamph. L. 30; but inasmuch as he was a devisee also, it was argued that he was incompetent. We are not able to see the force of the reasoning nor to adopt the conclusion. The language of the exception to the Act is to make parties competent "in issues and inquiries devisavit vel non and others, respecting the right of such deceased owner, between parties claiming such right by devolution on the death of such owner."

This is an issue devisavit vel non. It is between parties claiming a right by devolution on the death of the former owner. The subject-matter is respecting the right so acquired. Thus the form of the suit, the parties thereto, and the subject-matter bring it within the exception. We see nothing in it to exclude a party who is either devisee or executor only. A union of two conditions of competency, each unquestioned by itself, will not create incompetency as its joint product. It follows that both parties claiming an estate, under the same decedent, which has devolved on them by descent or succession, are competent witnesses in the trial of an issue to settle their respective rights thereto: Karns v. Tanner, 16 P. F. Smith 297.

No error is assigned to the general charge, but the answers of the court to the specific points submitted are assigned for error.

We have carefully examined the whole testimony. All the points submitted are substantially answered in the general charge. It contains a clear and correct statement of...