Doty's Adm'rs v. Doty's Guardian

• Citation: 80 S.W. 803,118 Ky. 204
• Parties: DOTY'S ADM'RS et al. v. DOTY'S GUARDIAN.
• Decision Date: 11 May 1904
• Court: Court of Appeals of Kentucky

80 S.W. 803

118 Ky. 204

DOTY'S ADM'RS et al. v. DOTY'S GUARDIAN.

Court of Appeals of Kentucky.

May 11, 1904

Appeal from Circuit Court, Madison County.

"To be officially reported."

Action by David Irvine Doty, by his guardian, Annie James, against the administrators and heirs at law of Boyle Doty. From the judgment, all parties appeal. Affirmed on both appeals.

J. A Sullivan, C. F. Burnam, and W. S. Moberly, for appellants.

J Tevis Cobb, Smith & Bush, C. H. Breck, R. L. Greene, and W B. Smith, for appellee.

HOBSON J.

About the year 1878, Boyle Doty, a well to do bachelor, something like 35 years of age, living on his farm, in Madison county, became intimate with Annie James, a girl about 16 years of age, living with her grandmother in the slashes, two or three miles from Doty's residence; her father and mother being dead. In the year 1882 her grandmother having died, she went to his house and lived with him as his mistress. In 1889 a son was born to them--the appellee, David Irvine Doty. They continued after the birth of the child living together as before until the year 1898, when there was some talk about the grand jury indicting them, and she took the boy and went to Missouri, staying there for some weeks. On her return from Missouri she took the boy with her to Doty's house, and she there lived with him as before until his death, on September 6, 1901. He left a considerable estate, a large part of which he had accumulated while Annie James lived with him and managed and controlled his household, doing all those things that a farmer's wife would usually do under similar circumstances. After his death the child, David Irvine Doty, by his mother, as guardian, brought this suit against the administrators and heirs at law of Boyle Doty, charging the facts stated, and alleging that, when his mother returned from Missouri with him, Boyle Doty agreed with her that if she would not take the child back to Missouri, and would bring him to his house to live, and never take him away from him, so that he could have him constantly with him, and raise and educate him, he would give the child 250 acres of land within a certain boundary, worth $15,000, and would also give him $2,500 in money to educate him and build a dwelling house upon the land for the child; that she accepted the proposition and carried it out; that Boyle Doty laid off the land to the child, and set it apart as the tract of land which he had given to the infant, and, in accordance with the contract, built a dwelling house upon it, and put the child in possession of the house and land, which was still held by him. He prayed that the title to the land be conveyed to him, or, if this could not be done, for judgment for the value of the land and the $2,500, the amount agreed to be given for his education. The allegations of the petition were denied by the defendants, and on final hearing the court entered a judgment in favor of the child for $2,500, with interest from May 2, 1902; also for $6,720 for the value of the land, with interest from December 1, 1903. From this judgment the defendants have appealed, and the plaintiff has taken a cross-appeal.

The first question to be determined relates to the competency of Annie James, the mother and guardian of the child, to testify to the contract betwen her and the deceased on which the action is based. It is insisted for appellants that she is testifying for herself as to a transaction with one who is dead, and is therefore incompetent under section 606 of the Civil Code, for the reason that she is liable for the costs of the action, and is entitled to compensation for her services as guardian. It is also insisted that she is the real actor in the suit, and is therefore testifying for herself. In support of this view we are referred to Smick v. Beswick, 24 Ky. Law Rep. 276, 68 S.W. 439; Miller v. Cabell, 81 Ky. 178; and Hobbs v. Russell, 79 Ky. 61. It was held in Stowers v. Hollis, 83 Ky. 544, that the mother of a bastard is a competent witness for the child, to prove a contract by the father with her for the support of the child, although he is dead when she testifies. But in that case the mother was not the guardian of the child, or party to the action. The exact question presented here was therefore not raised in that case. Subsection 2, § 37, of the Civil Code, reads as follows: "A guardian, curator, committee, or next friend who brings or prosecutes an action for a person who is under disability is liable for the costs which accrue during his conduct of the action, unless he be allowed to sue in forma pauperis, by an order of the court, or by an order of the judge thereof during vacation." Under this provision it was held that a guardian was personally liable for costs accruing during the prosecution of an action conducted by him. Snyder v. Fidelity Trust & Safety Vault Co., 14 Ky. Law Rep. 615. But by the ninth section of the act regulating costs, approved May 27, 1892, which is now section 892, Ky. St. 1903, it is provided as follows: "A personal representative, guardian, assignee, curator, committee, or trustee in an action shall, if unsuccessful, be adjudged to pay costs as other litigants. The judgment for costs in such case shall only be against the assets which have, or may, come to his hands." This act, being subsequent to the Code, repeals its provisions in so far as they are in conflict therewith, and under it any judgment rendered herein against the guardian for costs must be only against the assets which have or may come to her hands. She is not, therefore, personally liable for costs. In Smick v. Beswick's Adm'r, 24 Ky. Law Rep. 276, 68 S.W. 439, it was held that an attorney who was to receive a sum equal to one-half the recovery, and was to get nothing if he failed to recover, could not testify for the plaintiff as to a transaction between him and the decedent. The attorney was equally interested with his client in the result of the case, and every rule of law which closed the mouth of the client would apply equally to the attorney. By section 2036, Ky. St 1903, it is provided: "The guardian, besides all necessary disbursements and repairs, shall be allowed by the court a reasonable compensation for his services." Every witness summoned by the plaintiff would, to the extent of his witness claim, be interested in the result, if the guardian would be interested because of her right to compensation for her services. She is entitled by law to a reasonable compensation for her services, but is given no right to any part of the fund recovered. Her trust may be terminated before any part of it comes to her hands. In New York Life Insurance Company v. Johnson's Adm'r, 24 Ky. Law Rep. 1867, 72 S.W. 762, it was held that a policy holder in a mutual company, who thus participates in the profits of the company, may testify for the company as to a transaction with a decedent, on the ground that the disqualifying interest, to exclude the witness, must be direct and certain, and that an uncertain or remote interest will not disqualify. In Eisenlord v. Clum, 27 N.E. 1024, 12 L. R. A. 836, the New York Court of Appeals held the mother competent in an action by the son to establish her marriage with his father, although, if this fact was established, she would be entitled to dower in the land sued for; the court ruling that the judgment in favor of the son would not be evidence in her favor in an action for dower. In 1 Greenleaf on Evidence, § 389, in summing up those who are competent, though remotely interested, this is given, "A creditor for his debtor;" and in section 390 the rule is stated as follows: "The true test of the interest of a witness is that he will either gain or lose by the direct legal operation and effect of the judgment, or that the record will be legal evidence for or against him in some other action. It must be a present, certain, and vested interest, and not an interest uncertain, remote, or contingent." We therefore conclude that her right to a reasonable compensation for her services was insufficient to disqualify the witness. For she was entitled to the allowance for her services whether the case was won or lost. Her interest was not directly in the result of the action, although the ward's estate might be able to pay her if the suit was won, and unable to pay if it was lost. This indirect interest in the recovery went to her credibility, and not to her competency. Were the rule otherwise, no person holding a claim could testify for the debtor as to the acts of one who was dead when the testimony was given.

It remains to determine whether the witness was incompetent to testify because she was, as guardian, a party to the action as relator. In Miller v. Cabell, 81 Ky. 178, it was held that the guardian of an infant is an indispensable party to an appeal from a judgment obtained in a proceeding instituted in the name of the infant by him as guardian, and in that case the court said that, "where the guardian of an infant sues for him, he is the real actor, and the court has no power to displace him, unless his interest is in some manner hostile to the infant, or he is prosecuting the action in bad faith, and without regard to the interest of the infant." In Hobbs v. Russell, 79 Ky. 61, it was held that an executor, who was also one of the devisees, when sued as executor, could not testify for himself as to a transaction between him and a decedent. This case was followed in Witt v. Thomas, 19 Ky. Law Rep. 847, 42 S.W. 338, where the administrator was also the sole heir at law. But in Swinebroad v. Bright, 25 Ky. Law Rep 742, 76 S.W. 365, where the executor was sued by one of the devisees, and it was simply a question as to which of the devisees was entitled to the fund, it was held that the...