Martin v. Williams

18 Ala. 190

• Court: Supreme Court of Alabama
• Decided: June 15, 1850
• Status: Published

Opinion

CHILTON, J.

1. The bill of exceptions does not show that the witness, by whom the plaintiff in error proposed to prove the conversation of his testatrix in relation to the agreement between her and Mrs. Nixon, had been examined in reference to such conversation by the plaintiff below, or that any part of such conversation had been detailed by the witness at his instance. So that the first assignment of error must.be overruled upon the ground that the declarations of a party are not evidence for himself unless they constitute part of the res gesta.

2. Mrs. Nixon having attended in obedience to the subpoena duces tecum, and having, as we must presume, in court, the notes which the subpoena required her to bring with her, was held not bound to produce the notes, or to testify in respect to their custody, unless the defendant would introduce her as a witness generally in the cause. Although this witness was subpoenaed to give evidence, as well .as to bring with her the papers refered to, it does not follow that the party was bound to examine her as a witness in chief. If the witness had the papers called for by the subpoena in court, it was the duty of the court to have required their production by her. This may be done by the witness without being sworn, or upon oath, if either party desire it. — See Phil. Ev. C. & H. notes, part 2, n. 362, p. 713, (3d ed.,) where the cases are cited; Amy v. Long, 9 East. 485-6; Rex v. Netherthong, 2 Maule & Sel. 337, and cases cited on brief of the counsel for the plaintiiF in error.

3. The charge maybe briefly disposed of. It .does not .appear that the administratrix of Alexander Nixon, deceased, ever rented out the land cultivated by Mrs. Burt, as the statute requires, but if any such renting was made, it was by private arrangement between Mrs. Nixon and Mrs. Burt. The statute provides, “ that it shall be lawful for administrators and executors to rent at public out .cry the real estate of any decedent, until a final settlement of the estate of said decedent is effected, and the proceeds shall be assets in the hands of such executors or administrators.” — Dig..199, § 36. This a special power confer-ed upon the personal representative, and must be executed in the manner pointed out by the statute, otherwise, as the land, upon the death of the ancestor, descends to the heirs, it would be considered as held in subordination to their title. To eutitle the administratrix to the rents as the assets of the estate she must have rented the land at public’ out cry, for it is not lawful for her to make a'private disposition of it. This, the record shows she has not done in the case before us, and as Mrs. Nixon has failed to make such a disposition of the land as would constitute the rents assets, it is very clear the administrator de bonis non of the estate of Alex. Nixon, deceased, cannot recover such rent. Not being assets, he has no concern with it. Let ¡the judgment be reversed and the cause remanded.