Townsend v. Kennard

1 Miss. Dec. 222

• Court: Mississippi Supreme Court
• Decided: March 8, 1886
• Status: Published

Opinion

Opinion.

Campbell, J.,

delivered the opinion of the court:

The course of examination of the witness Bobertson by the counsel of the defendant below was proper and should have been permitted.

The plaintiff was not a competent witness, for he was testifying to prove his own claim against the estate of a deceased person, which originated in the lifetime of such person. Although the proceeding was specifically against certain things they were part of the estate of Townsend when he died, and had been set apart to his widow as a portion of his estate.

Reversed and remanded for a new trial.

Tire term “ claim ” is not limited to a fixed debt nor to a demand ex contractu. Lamar v. Williams, 39 Miss. 342; Rotchschild v. Haten, 54 Miss. 554.

In a suit by the representative of the estate, a defendant is incompetent to testify to a contract between himself and a decedent. Otey v. McAfee, 38 Miss. 348; Boylan v. Holt, 45 Miss. 277.

A party plaintiff who has no beneficial interest in the suit is a competent witness for the usee. Hedges v. Aydelott, 46 Miss. 99.

The statute applies where the witness has assigned his claim since the death of the deceased “ without recourse ” and is being prosecuted by his assignee Reinhardt v. Evans, 48 Miss. 230; Jones v. Sherman, 56 Miss 559, Gordon v. McEachin, 57 Miss. 834.

If the assignment be made before the death of the decedent the assignor is a competent witness. Snell v. Fewell, 64 Miss. 655.

When the canse of action originated after the death of decedent, the parties to the suit are competent witnesses. Witherspoon v. Blewett, 47 Miss. 570.

The original debtor is a competent witness to show that defendant’s intestate assumed his debt to the plaintiff and is liable therefor. Sweatman v. Parker, 49 Miss. 19.

The term “ estate ” is used, in its broad and popular sense, to signify all the property of every kind which one leaves at his death'; and any right asserted against the estate of a deceased person which accrued to a party by virtue of dealings between him and the deceased cannot be established by ■evidence of the living party. Jacks v. Bridewell, 51 Miss. 881; Green v. Mizell, 54 Miss. 220; Rothschild v. Hatch, 54 Miss. 554; Jackson v. Smith, 68 Miss. 53.

To exclude a party as a witness to prove His own claim or right, it must be against the estate of a deceased person in the suit in which he proposes to testify. Love v. Stone, 56 Miss. 449; Cole v. Gardiner, 67 Miss. 670; Jackson v. Smith, 68 Miss. 53.

It is not a valid objection that the testimony of the witness will remotely and collaterally contribute to or create a liability that may or may not be vindicated in some other proceeding. Griffin v. Lower, 37 Miss. 458; Lamar v. Williams, 39 Miss. 342; Faler v. Jordan, 44 Miss. 283; Love v. Stone, 56 Miss. 449; McCutchen v. Rice, 56 Miss. 455; Fennell v. McGowan, 58 Miss. 261; Combs v. Black, 62 Miss. 831; Cole v. Gardiner, 67 Miss. 670.

Where the question is one of the admissibility of other evidence — a question to be determined by the court— the statute does not apply. Bookout v. Shannon, 59 Miss. 378; Harper v. Lacey, 62 Miss. 5.

This section applies although the decedent conducted the transaction out of which the action arises by an agent, who is yet alive and has testified in the case. McCaughan v. Hardy, 78 Miss. 598.

Where an equitable assignment of a policy of insurance has been made to a third person the original beneficiary consenting, such original beneficiary may testify against the estate of the insured to the facts constituting such assignment which originated during the lifetime of the deceased, because he testifies to establish not his own but the assignee’s claim. Cockrell v. Cockrell, 83 Miss. 385.