Stein v. Weidman's Adm'r

• Decision Date: 31 October 1854
• Citation: 20 Mo. 17
• Parties: STEIN, Defendant in Error, v. WEIDMAN'S ADMINISTRATOR, Plaintiff in Error.^a1
• Court: Missouri Supreme Court

20 Mo. 17

STEIN, Defendant in Error,

v.WEIDMAN'S ADMINISTRATOR, Plaintiff in Error.^a1

Supreme Court of Missouri.

October Term, 1854.

1. The distributee of a solvent estate is a competent witness for the estate, under the new practice. (Penn v. Watson, ante, overruled.)

2. A widow is a competent witness for or against her deceased husband's estate, as to facts which she did not learn from her husband.

3. The wife of an administrator is a competent witness for her husband, when sued upon a demand against the estate of his intestate, her former husband, as to facts which came to her knowledge before letters granted.

Error to St. Louis Circuit Court.

The facts sufficiently appear in the opinion of the court.

C. Gibson, for plaintiff in error.

A distributee of an estate is not a party to the action, nor a person for whose immediate benefit it is defended, within the meaning of the new practice act. While the administration is open, the administrator acts for the creditors, as well as the distributees. If a distributee is incompetent, so is a creditor. The competency of the witness cannot be made to depend upon the solvency or insolvency of the estate; for it may be impossible, when the witness is offered, to know whether the estate will prove solvent or insolvent. Under the law, as it stood before the new act, a distributee was incompetent, on the ground of interest, and not of being a party for whose immediate benefit the suit was prosecuted or defended.

C. C. Whittelsey, for defendant in error.

I. The widow of the intestate, whose estate is solvent, is not a competent witness for the administrator. The new code only abolishes disqualification arising from interest, and still leaves a party for whose benefit a suit is prosecuted or defended disqualified. By our statute, the widow takes one-third of the personal estate absolutely, subject to the payment of debts. The widow and next of kin really own the estate, and the administrater is a mere trustee. (New code. art. 25, § 1-2; Bank of Ithica v. Dean, 1 N. Y. Code, 133; Hoffman v. Stevens, 2 N. Y. Code, 16; 3 Code, 24.)

II. She should also be excluded as the widow, for, as she still remains protected from divulging the secrets of her deceased husband, she should not be allowed to testify for the estate. (1 Greenl. Ev. § 337.)

RYLAND, Judge, delivered the opinion of the court.

The only question in this case is in relation to the admissibility of the witness, Elizabeth Schell, the wife of the defendant, and former widow of Weidman, the intestate. Schell, the administrator of the estate of Adam Weidman, is sued by Stein for work and labor done by Stein for said Weidman; or rather, Stein exhibited his demand against the estate of Weidman, for allowance in the Probate Court, for $788, on which was a credit of $500.

This demand was disallowed, all except the sum of $88, which last sum was allowed in favor of Stein, against the estate of Weidman. From this judgment, Stein appealed to the Circuit Court, and there obtained judgment for the sum of $325 44.

On the trial of the appeal in the Circuit Court, the administrator, Schell, offered the widow of said Weidman, deceased, who was then his own wife, as a witness, to prove an agreement between said plaintiff, Stein, and said Weidman, about this demand. The plaintiff objected to the witness as incompetent. The court sustained the objection, and excluded the witness. The administrator, defendant, prayed for a review and for a new trial. His motion being overruled he sues out his writ of error.

The estate of Weidman was admitted to be solvent. In the case of Scroggin & Smith v. Holland, decided heretofore by this court, (16 Mo.) the question of the competency of the widow as a witness, for the benefit of the estate of her deceased husband, was before the court, and it was there held, that she was competent. In that case, the estate was insolvent, and it was admitted that she had received all she was entitled to. In the present case, the estate is solvent. This does not alter the question in relation to the competency of the witness.

The objections to the competency of this witness rest upon the ground that she is a distributee, is entitled to a share in the estate of her deceased husband, and that, therefore, the suit is defended for her immediate benefit; and so she cannot be a witness under the new code; and that the policy of the law will not suffer the widow to testify in behalf of the estate of her deceased husband. These objections are fully within the principles of the case of Scroggin & Smith v. Holland, and have been overturned by the decision therein.

In addition to what is said in that opinion, it may not be amiss to cite some authorities, settling this question, and putting it at rest for the future. In Babcock v. Booth, 2 Hill, 181, it was held, that the widow was a competent witness to testify against the administrator of her deceased husband, in respect to any facts which she did not learn from her husband.

In the case of Weston v. Hatch, Exec'r, in an action against an executor for work and labor and services done for the decedent, a residuary legatee, under the will, was held a competent witness for the executor. (6 Howard's Prac. 443.) In this case, the Court, by Hubbard, Justice, delivered the opinion, in which it is stated that, “prior to the code, the...