Cowles v. Cowles' Adm'r

• Citation: 71 A. 191,81 Vt. 498
• Parties: COWLES v. COWLES' ADM'R.
• Decision Date: 17 November 1908
• Court: Vermont Supreme Court

71 A. 191

81 Vt. 498

COWLES

v. COWLES' ADM'R.

Supreme Court of Vermont. Addison.

Nov. 17, 1908.

Exceptions from Addison County Court; Willard W. Miles, Judge.

Proceedings for settlement of the estate of Josiah Cowles. From the allowance by the commissioners thereon of a claim of J. E. Cowles, the administrator appealed to the county court, where there was judgment for claimant, and the administrator excepted. Reversed and remanded.

J. B. Donoway and J. E. Cushman, for plaintiff.

Davis & Russell, for defendant.

TYLER, J. This is an appeal by the administrator of Josiah Cowles' estate from the allowance by the commissioners thereon of a claim in favor of the plaintiff. Assumpsit in the common counts. Pleas, the general issue and statute of limitations.

1. At the trial in the county court the plaintiff offered himself as a witness to prove the items in his specification. He did not claim that he was a competent witness under any exception to P. S. 1590, but he did claim that the defendant had waived the provisions of the statute by calling him as a witness at the hearing before the commissioners. The defendant objected to his testifying upon the ground that he was barred by the statute, and he testified under the defendant's exception. It was competent for the administrator to waive the statute, and permit the plaintiff to testify. Ainsworth v. Stone, 73 Vt. 101, 50 Atl. 805. In Paine v. McDowell, 71 Vt. 28, 41 Atl. 1042, the oratrix called the defendant as a witness, and proved by him the making of the contract in controversy with a party who had deceased. Held that she thereby waived her right to object to him for incompetency when he was subsequently called by the other side. See Linsley v. Lovely, 26 Vt. 123. If there was a waiver and the plaintiff became a competent witness, it was by reason of the following facts that the evidence tended to show: The firm of Davis & Russell, attorneys, had been employéd by two of the four heirs to the estate to appear at the hearing before the commissioners. Russell appeared in that capacity, but was not employéd by the administrator. The plaintiff having stated his claim and the arrangement and understanding that existed between him and the intestate, Russell requested that he be sworn, which was done, when Russell examined him generally as to the nature and extent of his claim and as to the understanding and arrangement claimed by him to have existed. It appeared that the administrator was present when the plaintiff was sworn and heard him testify; that he made no objection; that the plaintiff's testimony was generally about his account; that the administrator made no inquiries and directed none to be made of the plaintiff with reference to his claim; that he did not employ Russell until after the hearing and then about taking an appeal; that the appeal was taken at the instance of the two heirs whom Russell represented. The court found that the plaintiff was used as a witness before the commissioners at the request of the defendant, and held that the statutory bar to his testifying was waived, and that he was therefore competent to testify as a witness in his own favor. Mr. Russell represented the interests of two of the four heirs. The administrator represented the interest of all the heirs therefore to an extent the attorney and the administrator represented the same interests. They were alike interested to resist the plaintiff's claim; for, if it were allowed, the distributive shares of the heirs would be diminished. The apparent purpose of Russell's examination of the plaintiff was to gain information concerning his claim, so that the estate might be prepared to defend against it. In this the administrator and Russell had a common Interest. By the common-law rule a married woman was incompetent to testify for or against her husband in a civil action, but it is laid down in Wig. on Ev. § 2242 (3), that a failure to object upon the calling of the wife to the stand is equivalent to consent. In Benson v. Morgan, 50 Mich. 77, ...