McClelland's Executor v. West's Administrator

• Decision Date: 13 May 1872
• Citation: 70 Pa. 183
• Parties: McClelland's Executor <I>versus</I> West's Administrator, to use, &c.
• Court: Pennsylvania Supreme Court

70 Pa. 183

McClelland's Executor versus West's Administrator, to use, &c.

Supreme Court of Pennsylvania.

November 13, 1871.

May 13, 1872.

November 13th 1871.

Before THOMPSON, C. J., READ, AGNEW, SHARSWOOD and WILLIAMS, JJ.

Error to the Court of Common Pleas of Fayette county: No. 37, to October and November Term 1871.

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C. Boyle and D. Kaine, for plaintiff in error.—As to 1st error cited: Post v. Avery, 5 W. & S. 509; Haus v. Palmer, 9 Harris 296; Purdy v. Dedrich, 2 Philad. R. 278; Graves v. Griffin, 7 Id. 178; Wilkinson v. Turnpike Co., 6 Barr 398; Karns v. Tanner, 16 P. F. Smith 297.

As to 2d error: McClelland v. West, 9 P. F. Smith 487; Webster v. Newbold, 5 Wright 592; Harbold v. Kuntz, 4 Harris 210; Farley v. Kustenbader, 3 Barr 418.

D. Downer, for defendant in error.—As to 1st error, cited Bennett v. Hethington, 16 S. & R. 193; Ott v. Houghton, 6 Casey 451. As to 2d error: Huff v. Richardson, 7 Harris 388.

The opinion of the court was delivered, May 13th 1872, by AGNEW, J.

The objection to the competency of Enos West as a witness cannot be sustained. He was not a party to the record and had no interest in the subject of the controversy, nor was he a party to the contract or account out of which the debt in suit arose, and no assignment from him was necessary to enable the plaintiffs to maintain their action. Whatever interest he had was a resulting interest in the final settlement of the estate of Jonathan R. West. But as the action was brought, he had no interest in that particular claim, for the action was not brought for the benefit of the estate, but for the use of Jacob D. West, and George L. West, whose interest passed to D. N. Cooper. They were the parties conducting the suit. The release of Enos West was to George L. West, in whom the title of the estate of Jonathan R. West had apparently vested before, either by the act of the decedent or that of his representative. In this state of the record the release was primâ facie a release, and not an assignment. Now, in the bill of exceptions, it does not appear that the right of Jacob D. and George L. West, to bring the suit, was denied or that proof of their title was demanded as preliminary to the objection to the competency of the witness. Since the Act of 1869, enacting that neither interest nor policy of law shall exclude a witness, the ground of Post v. Avery is removed by legislation. Now the policy at the bottom of that case and its sequents is reversed, and primâ facie all witnesses are competent so far as interest and policy are in the question. It therefore lay upon the defendant to show a ground of incompetency still remaining to exclude the witness. As the record stood then without objection, there was nothing to show that the estate of Jonathan R. West, or that Enos West had any interest in the controversy before the court. Since the act of 1869, the court, in order to act in good faith toward the legislative branch of the...