Tichenor v. Tichenor

• Decision Date: 17 May 1889
• Court: New Jersey Supreme Court
• Parties: TICHENOR v. TICHENOR.

17 A. 631

45 N.J.E. 303

TICHENOR

v. TICHENOR.

Court of Errors and Appeals of New Jersey.

May 17, 1889.

(Syllabus by the Court.)

Appeal from prerogative court; MCGILL, Ordinary. See 10 Atl. Rep. 869.

Mr. Stevens, for appellant. J. W. Taylor, for respondent.

MAGIE, J. Two of the executors of James H. Tichenor, deceased, of whom appellant was one, tiled an account of the estate in the orphans' court of Essex county. Respondent, who was a legatee, and also an executor, but not one of the accountants, excepted to the account, because accountants had not charged themselves with the amount of a note given by appellant to deceased, and of two drafts drawn by appellant in favor of deceased. Upon the hearing appellant offered himself as a witness, and was permitted, against the objection of respondent, to testify to transactions with, and statements by, testator. The admission of this evidence was put upon the ground that respondent, an executor, had previously been admitted as a witness in support of his exceptions. This ruling was obviously upon the theory that the fourth section of the evidence act (Revision, 378) remained in full force notwithstanding the supplement to that act approved February 25, 1880, (Supp. Revision, 287.) Upon the whole evidence the orphans' court sustained the exceptions, and charged on appellant the amount of the note and drafts. On appeal to the prerogative court, the ordinary held that the case was within the ruling of this court in Smith v. Burnet, 35 N. J. Eq. 314, and that the evidence objected to was improperly admitted. Since, upon the rejection of that evidence, there was nothing to support the account, the decree was affirmed. Tichenor v. Tichenor, 43 N. J. Eq. 163, 10 Atl. Rep. 867.

If, as is now contended, the application to this case of the ruling in Smith v. Burnet was erroneous, the conclusion reached could be supported, if the supplement of 1880 forms the sole rule for the admission of parties as witnesses in suits in which some party appeals in a representative capacity, as was held in the court of chancery in McCartin v. Traphagen's Adm'r, 43 N. J. Eq. 323, 11 Atl. Rep. 156. Upon an appeal in the case last mentioned this court, at this term, has construed the acts upon this subject, and has declared the effect of the act of 1880 upon previous legislation. The construction given by the orphans' court in this case, and that of the court of chancery were both repudiated. Under the construction now adopted in suits wherein some party sues or is sued in a representative capacity, the representative party may offer himself, and become a witness either under the fourth section of the evidence act, or under the supplement of 1880, and the admissibility of evidence by a non-representative party will depend upon the course taken by the representative party in giving his testimony.

Under this construction the questions presented by this...