Swinebroad v. Bright

Opinion of the court dy JUDGE HOBSON

on rehearing — Reversing. (Fob former opinion, see 73 S. Wl, 1031; 24 R., 2253 .)

Appellant’s father devised to her §1,000. Appellee, as his executor, refused to pay her the amount, on the ground that the legacy had been adeemed. She thereupon sued to recover it. The case is here for the second time. The facts of the case are stated in'the former opinion. See Swinebroad v. Bright, 23 R., 55 , 62 S. W., 484 . On that appeal there had been a judgment for defendant, which was reversed on the ground that under the statute the burden of proof was on the executor to show that the §1,000 paid appellant after the date of the will was intended by the testator in satisfaction of the bequest to her. On the return of the case the defendants amended their answer in conformity to the opin *517 ion, and, the case being tried before a jury, a verdict was returned in favor of the defendants, on which judgment was ¿gain entered, and the plaintiff appeals.

The only ground of complaint necessary to be noticed relates to the admission of evidence, as no objection is taken to the instructions of the court, and the amended answer was sufficient, for the allegation that the payment was intended by the testator in satisfaction of the legacy is necessarily an allegation that it was so intended by him at the time the gift was made; and'the court, in its instruction, thus submitted the issue to the jury. The verdict of the jury, therefore, supplied this averment in the answer, and cured the omission, if material.

The executor himself and his surety in his bond were introduced as witnesses to prove the declarations of the testator as to the purpose of the gift of $1,000. It is insisted for the appellant that, 'being defendants in the action, they were testifying for themselves as to a verbal statement of the decedent, and that their testimony was incompetent, under section 606 of the Civil Code. We do not so understand the rule. The question before the court was whether the estate of the testator owed the plaintiff $1,000. The testimony of the executor and his surety was to the effect that the estate did not owe the money. It was the duty of the executor to protect the estate, and we know of no rule of law making him an incompetent witness for the estate as to a transaction of his own decedent with him. If the $1,000 -yas not going to the plaintiff, it belonged to the residuary devisee. The executor had no interest in the fund. The judgment in the case did not affect his liability in any way, as in either case he had to pay the money over to somebody. He was not, therefore, interested in the result at all, and was not testifying for himself. Neither was the surety, J. B. Owsley. The *518 Code of Practice was aimed to widen, not narrow, the admissibility of witnesses, and one of the purposes of the section was to protect the estate of decedents. To hold the executor incompetent in a case like this would be to defeat the purpose of the statute. For this is really a controversy between the devisees under the will as to which of them is entitled to the part of the estate in question, and the executor is only in effect the stakeholder between them. The cost of the action, if decided against the executor, would be paid out of the estate; and he has no interest in the controversy, except to procure the direction of the court in the execution of his trust.

The court also allowed George Bright, one of the residuarydevisees, to testify as to a verbal statement of the testator to him. The testimony is objected to on the ground that, being one of the residuary devisees, and therefore entitled to the fund in contest, or a part of it, if not recovered by the plaintiff, he was testifying for himself, and that the evidence should not have been admitted, under section 606 of the Code. It has been held that, in a contest over a will, all the devisees are competent witnesses as to transactions with the deceased. Flood v. Pragoff, 79 Ky., 607 , 3 R., 372 ; Williams’ Ex’r v. Williams, 90 Ky., 28 , 13 S. W., 250 , 11 R., 828 . Our. first impression was that the same principle should be applied between devisees as to transactions with their testator, but on reconsideration we conclude that the statute does not permit this. It forbids one testifying for himself as to a verbal transaction with one who is dead. The residuary devisee was testifying here for himself, for, if appellant’s claim was defeated, the fund would go to him and the other residuary devisees. Hopkins’ Adm’r v. Faeber, 86 Ky., 223 , 9 R., 530 , 5 S. W., 749 . Under the express mandate of the Code, he can not testify as to the transactions with the de *519 cedent. Turner v. Mitchell, 22 R., 1784 , 61 S. W., 468 ; Townsend v. Wilson, 24 R., 1276 , 71 S. W., 440 . For the same reason, appellant, Mrs. Swinebroad, can not testify to anything which took place between her and the testator. Her husband may testify to. any matter which she might testify to, as either one of them, but not both, may testify. Bright’s Ex’rs v. Swinebroad, 21 R., 369 , 51 S. W., 578 . The husband, under the rule laid down in that case, can not, therefore, testify to. any transaction between him and the testator. The court allowed him to testify as to the transaction proved by the witness John Bright, but, as John Bright was not interested in any way in the estate, it was improper to allow appellant’s husband to testify as to a transaction between-him and the testator in John Bright’s presence, and the introduction of John Bright as a witness for appellee did not change the rule. We therefore conclude that the testimony of George Bright and appellant’s husband, so far as they testified to transactions with the testator, should have been excluded.

The declarations of the testator, whether- made before or 'after the notes were placed in the hands of the attorney, were properly admitted, as they were all made before the money was collected and the transaction closed up. They were so interwoven and so closely connected that they were competent to show the intention of the testator in the transaction which he then had in hand.

We have had some difficulty in determining whether there should be a new trial on account of the admission of the evidence of George Bright, under all the circumstances, and, in view of the fact that there' have been heretofore two judgments in favor of appellees. But the testimony of George Bright, taken alone, was sufficient to warrant the verdict; and, as the jury is the sole judge of the credibility of the *520 witnesses, we can not say wbat effect on tbeir verdict this testimony may have had. We conclude, therefore, a new trial must be granted. The former opinion (see Swinebroad v. Bright, 24 R., 2253 , 73 S. W., 1031 ) has been withdrawn.

Judgment reversed, and cause remanded for a new trial and further proceedings consistent herewith.