McHugh v. O'Dowd's Estate

• Decision Date: 03 July 1891
• Citation: 49 N.W. 216,86 Mich. 412
• Parties: MCHUGH v. O'DOWD'S ESTATE.
• Court: Michigan Supreme Court

49 N.W. 216

86 Mich. 412

MCHUGH v. O'DOWD'S ESTATE.

Supreme Court of Michigan

July 3, 1891

Appeal from circuit court, Wayne county; GEORGE S. HOSMER Judge.

Action by Annie McHugh against the estate of Edward O'Dowd for board of deceased and money loaned him. The administrator did not object to evidence of the claims by plaintiff, which being equally within the knowledge of deceased, was prohibited by How. St. Mich. � 7545, providing that, when a suit is prosecuted or defended by the heirs or personal representatives of a deceased person, the opposite party, if a witness, shall not be admitted to testify at all to matters which, if true, must have been equally within the knowledge of the deceased. Trial by jury, verdict and judgment for plaintiff, and defendant appeals.

Brannan & Donnelly and Elbridge F Bacon, for appellant.

Conely, Maybury & Lucking, for appellee.

CHAMPLIN C.J.

The plaintiff presented the following claim against the estate of Edward O'Dowd, deceased: "(1) Work and labor performed by claimant for deceased in his life-time, and board furnished him by claimant, $950. (2) Money paid by claimant to use of deceased in his lifetime to pay interest on and redeem from Hasselbacker mortgage, $780. (3) Money loaned by claimant to deceased, to-wit, in summer of 1883 $400. (4) Purchase price of land deeded by claimant to deceased in his life-time, to-wit, August 7, 1883, said land being lot 6 of the Chas. Moran farm, Detroit, Wayne county Mich., to-wit, $1,000. (5) To money due claimant from deceased on promise made in consideration of said deed of said land to pay her in money for her past services, and board furnished deceased, said new promise being made on, to-wit, August 7, 1883, to-wit, $1,000. The total sum of the claims to be recovered in the proceeding is $1,250." Upon the trial in the Wayne circuit court before a jury, a verdict was rendered in favor of the claimant for $546. It appears that the claimant was permitted to testify, without objection, to several material matters, which, if true, must have been equally within the knowledge of the deceased. This ought not to have been permitted by the party representing the estate. It has been held that an administrator cannot waive the statute of limitations, and thus charge the estate for a claim which the law presumes to have been paid. McGee v. McDonald's Estate, 66 Mich. 629, 630, 33 N.W. 737. The defense of the statute was...