Norristown Trust Co. v. Lentz

• Decision Date: 12 March 1906
• Docket Number: 214-1905
• Citation: 30 Pa.Super. 408
• Parties: Norristown Trust Company, Appellant, v. Lentz
• Court: Pennsylvania Superior Court

30 Pa.Super. 408

Norristown Trust Company, Appellant, v. Lentz

No. 214-1905

Superior Court of Pennsylvania

March 12, 1906

Argued December 7, 1905

Appeal by plaintiff, from judgment of C.P. MontgomeryCo.-1904, No 81, for defendant on case tried by the court without a jury in suit of Norristown Trust Company, administrator d. b. n c. t. a. of Sarah Burns, deceased, et al. v. Henry G. Lentzexecutor of Benjamin Lentz, deceased, real owner and tenant in possession.

Scire facias sur judgment.

The case was tried before Swartz, P. J., without a jury under the Act of April 22, 1874, P. L. 109.

The facts are stated in the opinion of the Superior Court.

Error assigned was in entering judgment for defendant.

Affirmed.

J. B. Larzelere, Jr., for appellant.-- The witnesses were incompetent: Shroyer v. Smith,204 Pa. 310;Rudolph v. Rudolph,207 Pa. 339;Patterson v. Dushane,115 Pa. 334;Darragh v. Stevenson,183 Pa. 397;Fisher's Estate, 7 Pa. C.C. 17;Roth's Est., 150 Pa. 261;Thomas v. Miller,165 Pa. 216;Krumrine v. Grenoble,165 Pa. 98;Kauss v. Rohner,172 Pa. 481;Acklin v. McCalmont Oil Co.,201 Pa. 257;Hostetter v. Schalk,85 Pa. 220;Lavelle v. Melley,27 Pa.Super. 69.

Henry Freedley, with him E. L. Hallman, for appellee.-- By the express terms of the act the decedent must be " a party to the thing or contract in action; " he must have " a right therein," and " an interest in the subject in controversy."Silas Jones, the executor of an executor, had none of these: Crane v. Hastings,49 P.L.J. 91;Jacksonv. Penna. Co., 2 Pa. Dist. 225;Dickson v. McGraw,151 Pa. 98;Allen's Est., 207 Pa. 325;Bank v. Henning,171 Pa. 399;Broadrick v. Broadrick,25 Pa.Super. 225.

Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.

OPINION

RICE, J.

This was a scire facias sur judgment entered in 1876.The defense was payment.The case was tried before the court without a jury, and resulted in a judgment for the defendant.As shown by the well considered opinion filed by the learned judge who tried the case, this judgment was the legitimate conclusion from his findings of fact, and the latter were fully warranted by the testimony, if the witnesses who gave it were competent to testify.As to the conclusiveness on appeal of the findings of fact of the trial court, unless they are manifestly erroneous and unwarranted, we need cite no authority.

As the case is presented to us, the question upon which it turns is the competency of the testimony of Henry G. Lentz and Charles Lentz, both of whom were legatees, and the former was executor, under the will of Benjamin Lentz, the original defendant in the judgment.This question also is quite fully considered in the opinion filed by the learned trial judge and we think was correctly decided in favor of their competency.The important dates are: April 28, 1894, death of Sarah Burns, at that time the owner of the judgment; August 16, 1897, death of Benjamin Lentz, the defendant in the judgment; May 5, 1903, death of Silas Jones, executor and trustee under the will of Sarah Burns.The testimony objected to relates to matters occurring after the death of Sarah Burns, and principally to the allegation of payment of the judgment by Henry G. Lentz, executor under the will of Benjamin Lentz, to Silas Jones, executor and trustee under the will of Sarah Burns.The witnesses were interested, but their interest was not adverse to the right of Benjamin Lentz; therefore, under the words of the act of 1887, and the construction heretofore given to them, they were not incompetent, by reason of his death, to testify in behalf of his estate: Smith v. Hay,152 Pa. 377;Brose's Estate, 155 Pa. 619;Crosetti's Estate, 211 Pa. 490;Mullet v. Hensel,7 Pa.Super. 524;Foringer v. Sisson,14 Pa.Super. 266.Their interest was adverse to the right of Ephraim Burns, the original plaintiff in the judgment, and of Sarah Burns, whose ownership was derived under his will, and, therefore, not being called by the plaintiff, they were incompetent to testify to any matters occurring before the death of Sarah Burns, but not as to matters occurring afterward, unless they were rendered incompetent by the death of Silas Jones.The question is whether he was a party to the " thing or contract in action" -- the judgment and the bond on which it was entered -- whose " right thereto or therein has passed, either by his own act or by the act of law, to a party on the record who represents his interest in the subject in controversy."Whatever the fact may be, the question is not complicated by any proof that he embezzled the money or did not properly account for it.Nor can we see that the fact that he was trustee, as well as executor, affects the question.The transaction, namely, payment of the debt, was with him as executor, and what is more important, the right or interest in the subject in controversy which was represented by the present plaintiff was not derived through or under Silas Jones, but through and under the will of Sarah Burns.The act of 1887 declares that no interest or policy of the law, except as provided in section 5, shall make any person incompetent as a witness.By that act competency of witnesses in civil cases is the rule and incompetency the exception: Pattison v. Cobb,212 Pa. 572.To warrant the exclusion of a witness upon the ground of interest it must appear that his case comes within the express terms of the exception embodied in clause (e) sec. 5, properly construed.If the language of the exception were ambiguous and reasonably susceptible of two constructions, one of which would preserve equality, by excluding every person whose interest is consonant with or adverse to the right of a deceased party to the thing or...