Dolan v. Dolan

• Decision Date: 09 April 1890
• Parties: DOLAN ET AL. v. DOLAN ET AL.
• Court: Alabama Supreme Court

7 So. 425

89 Ala. 256

DOLAN ET AL. v. DOLAN ET AL.

Supreme Court of Alabama

April 9, 1890

Appeal from probate court, Mobile county; PRICE WILLIAMS, Jr. Judge.

W E. Richardson and J. Little Smith, for appellants.

Harris Taylor, for appellees.

CLOPTON J.

This proceeding is an application to the probate court by appellee, as administratrix, to declare the estate of Thomas Dolan insolvent. The heirs appeared and made an issue by denying in writing the fact of insolvency. Among the claims mentioned in the statement of claims against the estate filed with the report of insolvency is one in favor of James Dolan for $2,844. He came in as a creditor, and, denying the insolvency, joined in the issue made by the heirs. A special issue was made by the heirs as to the justness and correctness of this claim. On the trial of this issue, James Dolan was called by the administratrix to prove his claim and she was called by him for the same purpose. The court allowed each to testify as to transactions with the deceased, against the objections of the heirs.

In a proceeding to declare an estate insolvent, the inquiry relates to the status of the estate, and the declaration of insolvency is not a final adjudication as to the validity of the claims presented or reported. Hence, as counsel contend, the same measure of proof as to the justness of the claim is not required as if they were being finally adjudged. A prima facie case only is requisite. The general rule, invoked by counsel for appellee, that, the disputed question being authorized by law to be tried, and having been tried by the court without a jury, the finding will not be reversed unless it is manifestly against the evidence, has no application when it appears that the conclusion and judgment of the court are based upon illegal and incompetent evidence, without the consideration of which the finding cannot be supported. There was evidence as to the value of the real estate, and also tending to show that the administratrix had received assets which she had not inventoried nor reported. We do not deem it important to consider this aspect of the case, as the evidence may vary on another trial; for it is manifest that the insolvency of the estate depends upon the allowance of the claim in favor of James Dolan, and it is equally apparent that without his testimony the evidence is not prima facie sufficient to show its existence and validity. The testimony of the administratrix as to James Dolan having given his salary to decedent is mere hearsay, and the evidence of Mrs. Marion is too vague and indefinite to found a conclusion upon.

We shall, therefore, confine our consideration mainly to the question raised by the objection to the competency of James Dolan to testify to transactions with the intestate with respect to his claim, as against the heirs. In this consideration, we shall not regard the contention, based on the relation between the parties,-the administratrix being the widow of the deceased, and James Dolan being her son born of a former marriage,-and other facts, that there is a combination and scheme between mother and son to assume antagonistic positions to the record, in order to cheat and defraud the heirs, who are the brothers and sisters of the intestate. This consideration goes rather to their credibility than competency.

Section 2765 of the Code provides that in civil suits and proceedings there shall be no exclusion of any witness because he is a party, or interested in the issue tried, "except that neither party shall be allowed to testify against the other as to any transaction with or statement by any deceased person whose estate is interested in the result of the suit or proceeding, or when such deceased person, at the time of such transaction or statement, acted in any representative or fiduciary relation whatsoever to the party against whom such testimony is sought to be introduced, unless called to testify thereto by the opposite party." We need not refer to or comment on the previous interpretation of the statute, as to its purpose and policy. It is not controverted that the purpose is the protection of the dead against the assertion of fraudulent claims and false defenses by the living, and that this protection extends not only to the deceased, but also to the rights of his heirs and others claiming in succession or privity. The competency of James Dolan is founded on the last clause of the statutory...