Tuck v. Bean

• Decision Date: 15 June 1931
• Citation: 155 A. 277
• Parties: TUCK v. BEAN.
• Court: Maine Supreme Court

155 A. 277

TUCK

v. BEAN.

Supreme Judicial Court of Maine.

June 15, 1931.

Appeal by Mabel Arvllla Tuck from a decree of judge of probate, opposed by Ellery A. Bean. To review the decree of the Supreme Court of Probate, Ellery A. Bean brings exceptions, accompanied by a general motion for a new trial and an appeal.

Exceptions overruled, motion for new trial overruled, and appeal dismissed.

Argued before PATTANGALL, C. J., and DUNN, STURGIS, BARNES, FARRINGTON, and THAXTER, JJ.

E. R. Parent and F. H. Lancaster, both of Lewiston, for appellant.

Frank A. Morey, of Lewiston, for appellee.

STURGIS, J.

In the probate court of original jurisdiction, the defendant's private claim against the estate of Jennie M. Knowlton, late of Lewiston, deceased, of which he was administrator, was allowed as a credit in his final account. On appeal to the Supreme Court of Probate, the claim was disallowed. The case is here on exceptions, accompanied by a general motion for a new trial and an appeal.

The exceptions only can be considered. A decree of a justice of the Supreme Court of Probate, under the statutes of this state, cannot be reviewed by this court on a general motion for a new trial. Look, Appellant, 129 Me. 359, 152 A. 84. Nor can it be considered on appeal. It must be brought forward on exceptions. Cotting v. Tilton, 118 Me. 91, 106 A. 113.

The defendant's first and second exceptions show no prejudice. They were reserved to the exclusion of questions asked the attending physician concerning the value or the usual price paid for the care given the defendant's intestate in her last illness. If the exclusion of these questions was error, it was cured by the physician's subsequent testimony, in which this value was fully stated.

Neither the defendant nor his wife were allowed to testify in support of his private claim against the estate nor to refute statements alleged to have been made by them in the intestate's lifetime. This was not error. The statute, allowing parties to be witnesses, in express terms is made not to apply to cases where one of the parties is an administrator or executor, except in certain cases there specified and not here involved. R. S. c. 96, §§ 114, 119. The competency of witnesses not bringing themselves within these exceptions is governed by the rule of the common law. Travelers' Insurance Co. v. Foss, 124 Me. 399, 130 A. 210; Weed v. Clark, 118 Me. 466, 109 A. 8; Sherman v. Hall, 89 Me. 411, 36 A. 626. They are disqualified by reason of interest and neither husband nor wife can testify for the...