McCoy v. Ayers

2 Wash. Terr. 307

• Court: Washington Territory
• Decided: July 15, 1884
• Status: Published

Opinion

Opinion by

Hoyt, Associate Justice.

Plaintiff in error was sued in the Court below, for having taken and converted to his own use certain moneys and chattels ■alleged to have been the property of Thomas K. McCoy, deceased, of whose estate the defendant in error was administrator.

To the complaint thus charging him, defendant answered ; •denying the material allegations of the complaint, and pleading as new matter the fact that the said Thomas K. McCoy was, at the date of his death, a resident of the county of Umatilla, in ■the State of Oregon; that he had been duly appointed by the County Court of said Umatilla County as one of the administrators of said estate ; and that if he had collected any of said moneys, he had done so as such administrator, and had duly accounted therefor to the said Court.

The new matter thus pleaded was denied in the reply.

The cause went to trial before a jury ; and to maintain the issues upon his part, said defendant offered as a witness in his behalf his brother, O. E. McCoy, which witness was excluded and not allowed to testify, on the ground that under Sec. 389’ of the Code of 1881, he was disqualified from testifying in the case, he being an heir at law and distributee of said estate.

The exclusion of said witness was excepted to, and the same has been assigned here as error.

Said Section 389 provides that in cases like this, the party in. interest or to the record shall not be allowed to testify.

"Was said heir and distributee disqualified under said statute?’

It is conceded that he was not a party to the record, nor directly interested in the result of the action. But it was contended that.the result of a judgment against the defendant would be to decrease the amount of said estate, and that therefore said, heir and distributee was interested in the result. ,

And if it was true that the estate would thus be affected by such a judgment, it is possible that the interest of such heir would be sufficient to thus disqualify him. '

But we do not think that the said estate could possibly be affected by the defendant’s having been held liable as claimed in the complaint, for the very gist of the action was the unlawful taking by defendant, and his said taking could only be thus unlawful upon one of two theories: First, that he took the same as a private individual, in which case a judgment against him. could not possibly affect said estate adversely; and secondly,, that in such taking he acted as administrator of said estate, but in violation of his duties as such; as if he acted in pursuance of such authority, then the taking would be rightful.

Could such estate be affected by his being held for acts alone, in violation of .his duties as such administrator?

We think not; as when his acts are thus outside of his authority they are tortious, and the estate could not be held liable for the consequences thereof; and if thereby he has exposed himself to an action, he and not the estate must abide the result.

The said estate could not, then, be adversely affected by any judgment against the defendant, and therefore such heir and distributee was not disqualified, and should have been allowed, to testify in the cause in behalf of said defendant.

This is all we need to say, and we should content ourselves-without any reference to the other questions in the record, did we not think it our duty, in view of the proper disposition of this case in the Court below, to say a word in regard to what seems to us a substantial failure on the part of the plaintiff to-make out a case, upon which he was entitled to have recovered at all in this action.

The only property with which the testimony in any way connected the defendant, was certain debts which certain parties in. Walla Walla County were owing to the deceased. And from the fact that said debts had been, without authority, paid to-said defendant, this action was sought to be maintained against him, as having received unlawfully the money of the estate.. But we do not think that upon the facts thus claimed he ever-received anything belonging to the estate. As the unauthorized payment to him by said debtors would not discharge them from, their liability to said estate, it must follow that said money so-paid by them was their own and not the estate’s, and that they and not the estate could recover the same of him.

It is true, that in case of the insolvency of said debtors, it is possible that a Court of Equity would allow the estate to pursue money paid under such circumstances ; still, in the absence-of such insolvency, and in a Court of Law, this could not be-done; but, as above stated, the estate would have to look to the debtors, and they to the person to whom they had (without authority) paid the money.

This rule would not obtain as to specific articles of property which had belonged to deceased; for though the person who had unlawfully parted with it might be liable, yet the specific-article, being the property of the estate, would be pursued as long as it could be identified. Moreover, it appears from this-record that these debts were evidenced by negotiable paper,, and that such paper was at the time of the death of said Thomas K. McCoy situated in said Umatilla County, Oregon ; that the same were there taken possession of by the administrator of the estate in that county, and by him duly accounted for to the proper Court; and we think that these notes, thus situated, were properly payable in Oregon, and that any moneys paid upon them would be rightfully paid to such administrator therein.

And we do not think that the fact that certain of these notes ■were secured by mortgages upon real estate in this Territory, would at all change the rights of the holder thereof.

It follows that a verdict and judgment thereon for plaintiff would not be allowed to stand, unless the evidence to support the same was of a'much stronger and different character than that disclosed by this record.

The judgment must be reversed, and the cause remanded for further proceedings, and it is so ordered.

We concur: Roger S. Greene, Chief Justice.

George Turner, Associate Justice.