Wilder v. Medlin
| Decision Date | 03 May 1939 |
| Docket Number | 454. |
| Parties | WILDER et al. v. MEDLIN et al. |
| Court | North Carolina Supreme Court |
New trial.
Plaintiff instituted this action as administrator of the Estate of Pearl Medlin Raines against the Administratrix of the Estate of O. R. Medlin, deceased, to recover money for which it was alleged O. R. Medlin had failed to account while he was acting as administrator of the Estate of Gaston H. Medlin. L T. Ross, administrator de bonis non of Gaston H. Medlin, was made party defendant, as was also the surety on the administration bond of O. R. Medlin. Pearl Medlin Raines and O. R. Medlin were the children of Gaston H. Medlin and the only distributees of his estate.
The cause was referred to Oscar Leach, Esq., as referee, the defendants preserving right to trial by jury. The referee reported findings of fact and conclusions of law in favor of the plaintiff, and defendants filed exceptions thereto, and demanded jury trial on the following issues:
J G. Mills and Paul F. Smith, both of Raleigh, for appellant.
Gulley & Gulley, of Wake Forest, for appellee Minnie Medlin administratrix of estate of O. R. Medlin.
T. Lacy Williams, of Raleigh, for appellees, L. T. Ross, administrator d. b. n. estate of G. H. Medlin, and Indemnity Ins. Co. of North America.
The only questions presented by this appeal relate to the rulings of the court below in the admission of testimony which it is contended was rendered incompetent by C.S. § 1795.
For a proper understanding of the relevancy of the testimony objected to and in order to determine its competency, it is necessary to consider the pertinent facts and circumstances as disclosed by the record. These may be briefly stated in chronological order as follows: Gaston H. Medlin died in March, 1933, intestate, leaving him surviving his two children, O. R. Medlin and Pearl Medlin Raines. In September, 1933, O. R. Medlin qualified as administrator of his father's estate with defendant Indemnity Insurance Company as surety on his bond. Without having rendered any account of his administration, O. R. Medlin died in November, 1934, and defendant Minnie Medlin, his widow, qualified as his administratrix. At the same time defendant L. T. Ross qualified as administrator de bonis non of the Estate of Gaston H. Medlin. In May, 1935, Pearl Medlin Raines died, and plaintiff Lynn Wilder, Jr., qualified as administrator of her estate. Plaintiff as such administrator made demand upon defendant Ross as administrator de bonis non of Gaston H. Medlin that he institute action against the Estate of O. R. Medlin, prior administrator of Gaston H. Medlin, and the surety on his bond, for the recovery of money alleged to be due by O. R. Medlin to his father's estate. Defendant Ross declined so to do, and thereupon the plaintiff instituted this action alleging that O. R. Medlin was indebted to the Estate of Gaston H. Medlin in the sum of $2,533.53 for money paid for him by Gaston H. Medlin to the Clerk of the Superior Court of Wake County, and that O. R. Medlin was also indebted to said Estate in the further sum of $9,000, money found by him in the home of Gaston H. Medlin after his death, and appropriated to his own use. Plaintiff alleged his intestate was entitled as distributee of Gaston H. Medlin's estate to one half of these amounts.
Evidence was offered in support of plaintiffs allegations. It appeared that in 1932, about a year before his death, Gaston H. Medlin had withdrawn $11,500 from a bank in Oxford, and that this was at a time when there were many bank failures in this and other sections of the country. Plaintiff offered evidence tending to show that shortly after Gaston H. Medlin's death, O. R. Medlin found and appropriated $9,000 in currency belonging to his deceased father's estate, upon which estate he subsequently qualified as administrator. Defendant's evidence tended to explain the matter of the $2,533.53, and to impeach the testimony of plaintiff's witnesses as to the finding of $9,000 in the Medlin home.
During the trial, over the objection of plaintiff as administrator of Pearl Medlin Raines, the following testimony of defendant L. T. Ross was permitted to go to the jury:
In apt time plaintiff requested the court to instruct the jury that this evidence could only be considered by them as tending to explain why Ross declined to bring the action and in no other aspect, and that the jury should not consider it in connection with the issues submitted. The court refused to give this instruction and the jury was permitted to consider this evidence as competent for all purposes.
Examining this evidence in its relation to the determinative issues in the suit, we think it was both incompetent under C.S.
§ 1795 and prejudicial to the plaintiff. The testimony was given by a party to the action, who was testifying in his own behalf, and in behalf of another party to the action, against the administrator of the deceased, Pearl Medlin Raines. It involved a personal transaction and communication between the witness and the deceased.
The defendant Ross testified, in effect, that, following an investigation which he had made as to the G. H. Medlin Estate, of which he was administrator and in which the deceased was interested as distributee, he had a conference with her in the presence of the defendant, Mrs. Minnie Medlin, in the office of witness' attorney, and that after going over the matter an agreement was entered into by the deceased with respect to the settlement of the estate which the witness had in charge. This was something more than the mere relation of a transaction between other parties. The witness was a party to the conference and to the entire transaction, as was also the...
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