Jackson v. Smith

68 Miss. 53

Opinion

Campbell, J.,

delivered the opinion of the court.

The plaintiff was not a competent witness, becatise the mule in dispute was part of the estate of Rogers, who had died in possession of it, and it was held and claimed by the defendant, by virtue of a deed of trust executed by Rogers, in which the mule was conveyed. Code, § 1602.

In Love v. Stone, 56 Miss. 449, it was held that the test of competency in this class of cases is, whether the estate of a deceased person is the subject-matter of the litigation in which the party is offered as a witness. Combs v. Black, 62 Miss. 831. As said in Jacks v. Bridewell, 51 Miss. 881, “The exclusion is not confined to cases in which the controversy is between him who would testify to his claim or right and the administrator or executor of the deceased person, but it extends to every assertion of such right by a party to any part of the estate left by a deceased person, and claimed by such party .... by reason of an alleged transaction between such party and the deceased person.”

Reversed and remanded.