Vannatta v. Willett's Adm'r

• Decision Date: 23 March 1898
• Citation: 103 Ky. 354,45 S.W. 85
• Parties: VANNATTA v. WILLETT'S ADM'R.
• Court: Kentucky Court of Appeals

45 S.W. 85

103 Ky. 354

VANNATTA v. WILLETT'S ADM'R.

Court of Appeals of Kentucky.

March 23, 1898

Appeal from circuit court, Shelby county.

"To be officially reported."

Action by Jesse Vannatta against H. H. Willett's administrator on a promissory note alleged to have been executed by H. H Willett, deceased. Judgment for plaintiff for a balance due on the note after deducting certain credits. Plaintiff appealed. Affirmed.

P. J Foree, for appellant.

J. C Beckham & Son and G. G. Gilbert, for appellee.

WHITE J.

In an action to settle the estate of H. H. Willett, deceased appellant, Vannatta, filed a note, properly proven, for $5,000, against the estate. This note is secured by mortgage. On the back of this note is indorsed: "Received the interest on this note to Sept. 22, 1890. Received the interest on this note to Sept. 22, 1891. Received on the within note $600.00, Sept. 29, 1893. Received the interest on the within note up to Sept. 22, 1893." The sole question arises as to the competency of appellant as a witness to testify concerning the last two of these indorsements. Appellant contends that the last two indorsements are for the same thing; i. e. the payment $600, being the payment of interest up to September 22, 1893. He contends that these indorsements were made by himself, in the absence of Willett, and were by his own mistake placed there twice. The court below refused to permit appellant to testify in regard to either credit, and by the indorsement they were held prima facie payments on the note, and the court only gave judgment for the balance after deducting the credits. From that judgment, this appeal is prosecuted.

Subsection 2 of section 606 of the Civil Code provides: "Subject to the provisions of subsection 7 of this section, no person shall testify for himself concerning any verbal statement of or any transaction with, or any act done or omitted to be done by, an infant under fourteen years of age, or one who is of unsound mind or dead when the testimony is offered to be given, except," etc. We are of opinion that these credits indorsed upon the note must be held to be transactions with decedent, and concerning which appellant could not testify, under the section of the Civil Code above. The mere fact that these indorsements may have been made by appellant himself, and are alleged to have been made in the absence of decedent, cannot alter the case. These credits are prima...