Maganaw & Co. v. Bell

• Decision Date: 22 September 1882
• Citation: 13 N.W. 277,13 Neb. 247
• Parties: MAGENAU & CO., PLAINTIFFS IN ERROR, v. N. H. BELL AND CHARLES C. TURNEY, EXECUTORS, DEFENDANTS IN ERROR
• Court: Nebraska Supreme Court

13 N.W. 277

13 Neb. 247

MAGENAU & CO., PLAINTIFFS IN ERROR, v. N. H. BELL AND CHARLES C. TURNEY, EXECUTORS, DEFENDANTS IN ERROR

Supreme Court of Nebraska

September 22, 1882

ERROR to the district court for Saunders county. Tried below before POST, J.

REVERSED AND REMANDED.

George L. Loomis, for plaintiffs in error, cited Greenleaf on Evidence, sec. 426. Myers v. Walker's Admr., 9 Ohio St. 558. White v. Tucker, 9 Iowa 100. Burrows v. McLain, 37 Iowa 189.

N. H Bell, for defendant in error.

OPINION

BY THE COURT

1. The defendants are executors of the last will and testament of John Riddle, deceased. The firm of Magemau & Co. in April, 1880, consisted of Eugene Magemau, Otto Magemau, and Oswald Miller, who filed a claim against the estate of Riddle for the sum of $ 94.50, which claim was disallowed by the county court. The plaintiffs then appealed to the district court. In July, 1881, Eugene Magemau sold his interest in the firm to Otto Magemau, and up to the present time he has no interest therein. On the trial of the cause in the district court Eugene Magemau was offered as a witness to prove the claim, to which objection was made upon the ground that the adverse party was the executor of Riddle. The objection was sustained and the witness excluded. This is now assigned for error.

Sec 329 of the code provides that: "No person having a direct legal interest in the result of any civil cause or proceeding shall be a competent witness therein, when the adverse party is an executor, administrator, or legal representative of a deceased person, unless the testimony of such deceased person shall have been taken during his lifetime and is to be read in evidence in such cause or proceeding."

In the case of Davis v. Davis, 26 Cal. 23, the court say: "We are of the opinion that the word 'representative' in the amendment of 1863 was intended by the legislature to designate the executor or administrator of a deceased person, and also the person or party who had succeeded to the right of the deceased, whether by purchase or descent or operation of law. Any other construction would leave the purchaser of an estate from a grantor who subsequently died in a worse condition than the grantor's executor would be had no conveyance of the estate been made."

In the case of Kimball v. Kimball, 16 Mich. 211, it was held that the statute precludes a party from putting in evidence his account of a transaction known to both when the death of the opposite party prevents his being heard. See also Grand Gulf R. R. v. Bryan, 8 S. & M. 275. Kelton v. Hill, 59 Me. 259. Hollister v. Young, 41 Vt. 156. Wamsley v. Crook, 3 Neb. 344.

But it is said that a party may, by divesting himself of his interest, in the event of a suit render himself competent as a witness, that the disability arises alone from his interest in the result of the suit; that is, suppose A has a claim against an estate which he is not competent to establish by his own testimony, but he may sell the claim and thereby divest himself of his...