Swinebroad v. Bright

• Decision Date: 22 October 1903
• Parties: SWINEBROAD v. BRIGHT ET AL.
• Court: Kentucky Court of Appeals

76 S.W. 365

116 Ky. 514

SWINEBROAD v. BRIGHT ET AL.

Court of Appeals of Kentucky.

October 22, 1903

G. B Swinebroad, R. H. Tomlinson, and R. P. Jacobs, for appellant.

W. G Welch and Hill & McRoberts, for appellees.

HOBSON J.

Appellant's father devised to her $1,000. Appellee, as his executor refused to pay her the amount, on the ground that the legacy had been adeemed. She thereupon sued to recover it. The case is here for the second time. The facts of the case are stated in the former opinion. See Swinebroad v. Bright, 62 S.W. 484. On that appeal there had been a judgment for defendant, which was reversed on the ground that under the statute the burden of proof was on the executor to show that the $1,000 paid appellant after the date of the will was intended by the testator in satisfaction of the bequest to her. On the return of the case the defendants amended their answer in conformity to the opinion, and, the case being tried before a jury, a verdict was returned in favor of the defendants, on which judgment was again entered, and the plaintiff appeals.

The only ground of complaint necessary to be noticed relates to the admission of evidence, as no objection is taken to the instructions of the court, and the amended answer was sufficient, for the allegation that the payment was intended by the testator in satisfaction of the legacy is necessarily an allegation that it was so intended by him at the time the gift was made; and the court, in its instruction, thus submitted the issue to the jury. The verdict of the jury therefore, supplied this averment in the answer, and cured the omission, if material.

The executor himself and his surety in his bond were introduced as witnesses to prove the declarations of the testator as to the purpose of the gift of $1,000. It is insisted for the appellant that, being defendants in the action, they were testifying for themselves as to a verbal statement of the decedent, and that their testimony was incompetent, under section 606 of the Civil Code. We do not so understand the rule. The question before the court was whether the estate of the testator owed the plaintiff $1,000. The testimony of the executor and his surety was to the effect that the estate did not owe the money. It was the duty of the executor to protect the estate, and we know of no rule of law making him an incompetent witness for the estate as to a transaction of his own decedent with him. If the $1,000 was not going to the plaintiff, it belonged to the residuary devisee. The executor had no interest in the fund. The judgment in the case did not affect his liability in any way, as in either case he had to pay the money over to somebody. He was not, therefore, interested in the result at all, and was not testifying for himself. Neither was the surety, J. B. Owsley. The Code of Practice was aimed to widen, not narrow, the admissibility of witnesses, and one of the purposes of the section was to protect the estate of decedents. To hold the executor incompetent in a case like this would be to defeat the purpose of the statute. For this is really a controversy between the devisees under the will as to which of them is entitled to the part of the estate in question, and the executor is only in effect the stakeholder between them. The cost of the action, if decided against the executor, would be paid out of the estate; and he has no interest in the controversy, except to procure the direction of the court in the execution of his trust.

The court also allowed George Bright, one of the residuary devisees, to testify as to a verbal statement of the testator to him. This testimony is objected to on the ground that being one of the residuary devisees, and...