Howard v. Patrick

• Decision Date: 05 June 1878
• Citation: 38 Mich. 795
• Parties: Emily Howard, adm'x v. Joseph A. Patrick, adm'r
• Court: Michigan Supreme Court

38 Mich. 795

Emily Howard, adm'x v. Joseph A. Patrick, adm'r

Supreme Court of Michigan

June 5, 1878

Submitted April 10, 1878 [Syllabus Material]

Error to Wayne.

Appeal to the Circuit Court from an order of the Probate Court confirming the rejection by commissioners on the estate of John W. Pardee, of a claim of $ 9573 made on behalf of the estate of Joseph Pardee, by Emily Howard, administratrix, and disputed by Joseph A. Patrick, administrator of the estate of John W. Pardee. The appeal was heard and appellant recovered judgment for $ 8398.89 and costs, which was set aside. Upon a new trial appellant recovered judgment for $ 3788.11, which was also set aside. It was then ordered on motion of defendant that the appellant file a declaration, and an issue was framed accordingly. The declaration alleged among other things that Joseph Pardee was for many years a resident of Dearborn in Wayne county, and a farmer, and that he died intestate Nov. 21, 1859, leaving lands, cattle, grain and other property; that after his death John W. Pardee [his son] took possession of the cattle and sold them, being aided in so doing by his brother Andrew J. Pardee, who died May 13 1864, bequeathing nearly all his property to John; that John also cut and sold 1600 cords of wood from land left by Joseph Pardee; and that he held over a ten years lease which Joseph Pardee had made to him and to Andrew on certain conditions that John W. Pardee died intestate Oct. 19, 1872; that there was no administrator on the estate of Joseph Pardee until the claimant Emily Howard was appointed Jan. 5, 1875, and that she claims that the estate of John W. Pardee is liable to her for the value of all the property taken and used as heretofore set forth, and for rent and interest. Defendant pleaded the statute of limitations and on the third trial judgment was rendered in his favor and the claimant brings error.

Judgment reversed with costs and a new trial ordered.

Levi Bishop for plaintiff in error. An administrator has the right to rents and profits from his decedent's estate, Kline v. Moulton, 11 Mich. 382; when timber is cut down and cut into cord-wood it becomes personal property for which trover, trespass or replevin will lie, and if sold, assumpsit, Bouvier's Dict., tit. Trees; 2 Selw. N. P., tit. Trover; 1 Washb. R. P., 12, 13, 144; 3 id. 347; Brackett v. Goddard, 54 Me. 313; Cook v. Whiting, 16 Ill. 481; and an administrator can maintain trespass for cutting it, 2 Saund. Pl. & E., 862; evidence on irrelevant matters called out on cross-examination is binding on the party who obtains it, even if brought out for impeaching purposes, 1 Greenl. Ev., §§ 448, 462, 1 Stark. Ev., 104; Dunn v. Dunn, 11 Mich. 284; Fisher v. Hood, 14 Mich. 189; the proof of recording a deed is evidence of livery of seizin from date of record, 2 Washb. R. P., 443; where the date of acknowledgment is later than that of the deed, no presumption of delivery before the former date can arise, Blanchard v. Tyler, 12 Mich. 339; the record of a deed presumes delivery at its date, Jackson v. Cleveland, 15 Mich. 94.

C. I. Walker for defendant in error. Where a witness sworn upon a former trial of the same issue between the same parties has died, his testimony is admissible on the later trial, 1 Greenl. Ev., § 363; 1 Cow. & H., Phil. Ev., 389, n. 109 a; Burson v. Huntington, 21 Mich. 416; but this rule should not extend to witnesses who are sick, insane or outside the jurisdiction, Powell v. Waters, 17 Johns. 176; Weeks v. Lowerre, 8 Barb. 530; Wilbur v. Selden, 6 Cow. 162; Crary v. Sprague, 12 Wend. 41; LeBaron v. Crombie, 14 Mass. 234; State v. Staples, 47 N. H., 113; Finn v. Com., 5 Rand. 708; Brogy v. Com., 10 Gratt. 722; Bergen v. People, 17 Ill. 426; Hobsen v. Doe, 2 Blackf. 308; Dupree v. State, 33 Ala. 380; but see Buller's N. P., 239, 243; Rex v. Eriswell, 3 T. R., 707; the heir of an intestate is entitled to possession of the real estate if the administrator does not take it during administration, Comp. L., § 2904; Streeter v. Paton, 7 Mich. 351; Marvin v. Schilling, 12 Mich. 360; Campau v. Campau, 25 Mich. 127; only the owner of the inheritance can complain of waste, Taylor's L. & T., § 352; Bewick v. Whitfield, 3 P. Wms., 266; Gordon v. Harper, 7 T. R., 11; Bulkley v. Dolbeare, 7 Conn. 232; Elliott v. Smith, 2 N. H., 430; Jackson v. Brownson, 7 Johns. 233; Moores v. Wait, 3 Wend. 104; Schult v. Barker, 12 S. & R., 272; Act 155 of 1875 excluding testimony of facts equally within the knowledge of a deceased opponent applies to an administratrix suing an estate in which she is also a distributee, Kimball v. Kimball, 16 Mich. 215; Wright v. Wilson, 17 Mich. 201; Munday v. Foster, 31 Mich. 321; and to a mere distributee who is not a party to the record, Manion v. Lambert, 10 Bush 297; Stalling v. Hinson, 49 Ala. 97; Jenks v. Opp, 43 Ind. 108; Blood v. Fairbanks, 50 Cal. 420; deliberate and intelligent admissions by a party are cogent evidence of their truth, 1 Greenl. Ev., § 201; 1 Phil. Ev., Cow. & H. notes, 462.

OPINION

Marston, J.

A large number of questions have been raised in this case. We do not however consider it necessary to refer to all, but only such of them as are likely to become important upon a new trial of the case.

I. The evidence of James Evans should have been admitted. The authorities are all agreed that where a witness has been sworn upon a former trial between the same parties and upon the same issue, and since the trial, has deceased, his testimony as given upon the former trial is admissible. And while there is a conflict as to whether this rule may be extended to cases where the witness is sick or insane, or beyond the jurisdiction of the court, yet we are of opinion that upon principle the evidence should be admitted, and that there is no good ground for any such distinction. In a case like the present the witness is, to all intents and purposes, so far as these parties are concerned, legally dead. They can no more avail themselves of his personal presence in court than though he were in fact dead. The reason of the rule admitting his testimony in the one case is equally strong in the other, and we can see no good reason for recognizing any such distinction.

II. The claimant called Catherine Evans, a daughter and heir of Joseph Pardee, and offered to prove by her the acts and declarations of John W. Pardee, showing that after Joseph Pardee died, and in 1860, John W. Pardee sold, used and converted the fat cattle and other property in question to his own use. This evidence was objected to and excluded. In support of this ruling it was argued, that although the witness was not in the strictest sense a party to the record, yet she was a daughter of Joseph Pardee and one of the distributees of his estate; that such a person was within the letter and spirit of the act which prohibits certain parties from testifying to facts within the knowledge of the deceased and of no other person.

In connection with this question another somewhet similar in character, relating to the offer to show by the claimant Mrs. Howard, what John had told her, and to the effect that he was not a partner with her father. This was excluded upon the ground that she was the "opposite party" within the statute.

By the amendment of 1875, that portion of the statute applicable to this case reads as follows: "That when a suit or proceeding is prosecuted or defended by the heirs, assigns, devisees, legatees, or personal representatives of a deceased person, the opposite party, if examined as a witness in his own behalf, shall not be admitted to testify at all in relation to matters which, if true, must have been equally within the knowledge of such deceased person." Act No. 155, Pub. L. 1875, p. 184.

This provision was first enacted in 1861, and the only change made therein by the act of 1875 was to prevent the opposite party from being a witness where the suit is prosecuted or defended by the heirs, assigns, devisees, or legatees of a deceased person, these words not being in the act of 1861, so that as the statute was first enacted it excluded the opposite party from testifying in relation to certain matters where the suit was prosecuted or defended by the representatives of a deceased person. The amendment of 1875 in no way affects this question.

It is somewhat difficult to ascertain with certainty and carry out the intention of the Legislature in reference to this matter. If we give the statute a literal construction and hold that only parties to the record are rendered incompetent, the apparent intention might in some cases be evaded by an assignment of the claim, and a bringing of the action in the name of the assignee. If we seek to ascertain and carry out the intention of the Legislature, it might become necessary to reject some important words at present contained in this statute. My brethren are of opinion that Mrs. Howard comes clearly within the words of this statute, and that her evidence was therefore properly rejected.

It appeared that Mrs. Evans had, previous to the time she was called as a witness, assigned her claim, and that she no longer was interested in the result of the case. We are of opinion therefore, that under any view which might be taken of this statute, Mrs. Evans, under the circumstances, was a competent witness, and that her proposed evidence should have been admitted. We therefore express no opinion as to whether she would or not have been a competent witness, had it appeared she was still interested in the action, although not a party on the record.

III. As to the claim for rent, John W. and Andrew J. Pardee were tenants of the estate of Joseph Pardee, under a lease given them by Joseph Pardee in 1859, and which was to expire in ten...