Hunt v. Hendrickson

• Citation: 116 A. 496
• Parties: HUNT v. HENDRICKSON.
• Decision Date: 06 March 1922
• Court: United States State Supreme Court (New Jersey)

116 A. 496

HUNT

v. HENDRICKSON.

Court of Errors and Appeals of New Jersey.

March 6, 1922.

Appeal from Supreme Court.

Action by John H. Hunt against Jennie L. Hendrickson, residuary legatee. From judgment for plaintiff affirmed by the Supreme Court, defendant appeals. Reversed.

Bleakly & Stockwell, of Camden, for appellant.

Patrick H. Harding, of Camden, for respondent.

GUMMERE, C. J. This action was brought in the Camden common pleas court to recover from Jennie L. Hendrickson, the defendant below, an indebtedness alleged to have been due to the plaintiff from Joseph D. Hendrickson, deceased, for work and labor performed by the plaintiff for the latter during his lifetime. The alleged liability of the defendant is based upon the fact that Hendrickson died seized of certain lands located in Collingswood, in the county of Camden, and that they passed to the defendant by a devise contained in the decedent's will. On these facts the plaintiff averred that, by virtue of section 1 of our Heirs and Devisees Act (Comp. Stat. p. 2739), the defendant is liable for the plaintiff's debt to the extent of the lands so devised. The defendant answered, setting up payment of the debt by the decedent in his lifetime, and, further, that plaintiff's claim was barred by a judgment of the orphans' court of the county of Philadelphia, in the state of Pennsylvania (decedent having been a resident of that county at the time of his death), one of the provisions of which was that the plaintiff's claim "will not be allowed." The trial of the cause resulted in a verdict for the plaintiff for the full amount of his claim. From the judgment entered on this verdict the defendant appealed to the Supreme Court, and two grounds were there relied upon for the reversal of that judgment: (1) That the trial court was in error in holding that the decree of the orphans' court of the county of Philadelphia was not a bar to the plaintiff's right of action; and (2) that the trial court erred in permitting the plaintiff to testify with relation to transactions had by him with the deceased testator. The Supreme Court resolved both questions in favor of the plaintiff and affirmed the judgment; and these same questions are now made the basis of the defendant's present appeal.

In considering the first of these questions, the Supreme Court pointed out that it appeared from the record of the orphans' court of the county of Philadelphia that there was no trial of the plaintiff's claim upon the merits and no consideration of its validity, the court disallowing it for the single reason that the plaintiff absented himself from the trial there had and refused to prosecute his claim before that court. It is apparent from these facts that the decree of the Philadelphia court was no bar to the plaintiff's present suit, and we are satisfied, not only with the conclusion of the Supreme Court upon this point, but with the reasoning upon which it is rested.

We cannot, however, agree with the view of the Supreme Court that the plaintiff was a competent witness to testify with relation to transactions had between himself and Mr. Hendrickson during the latter's lifetime. The objection to the testimony was based upon the provision of section 4 of our Evidence Act (Comp. Stat. p. 2218). That section provides that—

A party to an action shall not be permitted to give testimony "as to any transaction with or statement by any testator or intestate represented in said action, unless the representative offers himself as a witness on his own behalf, and testifies to any transaction with or statement by his testator or intestate."

The defendant, Jennie L. Hendrickson, did not offer herself as a witness; but the trial court held and the Supreme Court considered that the plaintiff did not come within the prohibition of the statute, for the reason that the defendant did not represent the decedent within the meaning of the statute. We are unable to concur in this view. The two cases decided by this court, relied upon by the Supreme Court, are Hodge v. Coriell, 44 N. J. Law, 456; Id. on appeal, 46 N. J., Law, 354, and Palmateer v. Tilton, 40 N. J. Eq. 555, 5 Atl. 105. We think the scope of these decisions was misapprehended. In Hodge v. Coriell the plaintiff brought an action in replevin against the defendant as an individual. The latter set up as a defense that the property replevied belonged to him as the administrator of one Shurts, deceased. The question presented was whether the plaintiff was prevented by the statute from testifying with respect to the declarations of Shurts to the effect that he had no title to the...