Fox v. Barrett's Estate

• Court: Michigan Supreme Court
• Writing for the Court: [117 Mich. 163] HOOKER, J.
• Citation: Fox v. Barrett's Estate, 117 Mich. 162, 75 N.W. 440 (Mich. 1898)
• Decision Date: 18 May 1898
• Parties: FOX v. BARRETT'S ESTATE.

75 N.W. 440

117 Mich. 162

FOX v. BARRETT'S ESTATE.

Supreme Court of Michigan

May 18, 1898

Error to circuit court, Wayne county; Fred H. Aldrich, Judge.

The claim of William H. Fox being disallowed by the commissioners on claims of the estate of Eliza Barrett, deceased, he filed declaration on common counts, and recovered judgment. Defendant brings error. Affirmed.

Bacon &amp Palmer, for appellant.

James H. Pound, for appellee.

HOOKER, J.

Two questions only require discussion in this case. The claimant was allowed a sum against the estate of the defendant's intestate, and the defendant has brought the cause to this court. The claim relates to money expended and services rendered for the intestate. It was claimed by the defendant that the services were rendered under an agreement by which the claimant was to pay $2.50 per week, and do certain work for the deceased for his board. We think this was not conclusively shown, and that there was evidence to go to the jury in support of the claim. Upon the cross-examination, the claimant was asked if he had not stated upon a former examination that he was engaged to be married to the decedent, who was an elderly woman, and he said that he did. He also testified, in answer to the questions of defendant's counsel, that he stated that, when he went to live with Mrs. Barrett, he was to pay $2.50 for his board and was to do certain work for her in addition to that, viz do the chores and look after the garden. On redirect, he testified that this agreement related to a time when he was working (presumably at his avocation), and that it was not to include any of his services continuously. This testimony was objected to as inadmissible under the statute excluding testimony as to matters equally within the knowledge of the deceased. Counsel for the defendant saw fit to interrogate the claimant as to alleged admissions about the contract and, by direct questions, compelled him to admit that he said under oath that he agreed to pay $2.50 a week for board, and do some work for the deceased, but apparently sought to preclude him from showing the full terms of the contract. In other words, they sought evidence out of his own mouth of so much of the contract as would benefit the estate, and attempted to exclude the things that would benefit the claimant. The statute in question was designed to protect estates, by excluding the testimony upon the subject known equally to the claimant and deceased party. If, however, the representative of the deceased wishes, he may compel the living party to testify; but in that case he cannot prevent such party from giving a full explanation of the subject inquired about. Can he avoid this by relying upon his admissions to prove the contract? In this case the defendant has not called the claimant as a witness, nor has he interrogated him about the terms of the contract. He has ingeniously avoided it by asking him, not what the contract was, but what he has admitted it to be upon another occasion. This was to all intents and purposes requiring the witness to testify upon the subject, for manifestly he might as well have said to the jury that those statements were true as to have said that he made them on a former trial, when under oath. It is clear that they went to the jury with all of the force of direct statements about the contract. When it is sought to explain them, he is met with the objection that his testimony is excluded by the statute, and the argument that he has not testified to the contract or been asked to do so, but merely what he has theretofore testified under oath to be the contract. It is admitted that upon such former trial the door was opened to redirect examination, if his testimony was called out by the adverse party; but it is urged that upon this trial his redirect must be confined to what was said upon the former trial, by way of explanation of the fact, although he may...