82 N.C. 339 | N.C. | 1880
The answer denies that the money used in the purchase of the Shaw land belonged to Denny, as guardian, or as coadministrator, and demands proof of the matters alleged in the complaint.
The following issue was submitted to the jury: Was the Shaw land bought by Denny with his ward's money, or with money which had been substituted for theirs, or with the proceeds of property which had been substituted for their money?
The exception which constitutes the basis of the decision of this court is as follows: Upon the trial of the issue, the plaintiffs' counsel introduced the written evidence of the defendant, David Coble, taken before a commissioner appointed to take an account of the administration of said Samuel Coble's estate, in an action brought by his next of kin (including the present plaintiffs) against W. A. Coble and David Coble, as surviving administrators, in which action the defendant was examined as a witness, and his evidence reduced to writing by the commissioner and signed by the defendant. The evidence was objected to, objection overruled, and defendant excepted. The jury responded to the issue in the affirmative, judgment for plaintiffs, and appeal by defendant.
When this case was before the court at June term, 1878, BYNUM, J., in delivering the opinion remarked that "the law and merits of the case are probably with the plaintiffs, and it is with reluctance that we are compelled to withhold an affirmation of the judgment rendered below, and to award a venire de novo," (
Upon the trial of this issue, the proper response to the others with certain additional facts being agreed on by the parties, the plaintiffs offered in evidence, and after objection were permitted to read to the jury the deposition of the defendant, taken in a former action in which the present plaintiffs and other children of Samuel Coble by a former marriage were plaintiffs, against the defendant and W. A. Coble, surviving administrator of said Samuel Coble, for the settlement of the estate, the other administrator, the defendant's intestate, being dead. The deposition tended to show the possession by Denny, as guardian, of a large amount of trust funds and their use in payment of the land purchased from Shaw, and was material upon the subject matter of enquiry.
We think the deposition ought not to have been received. *342 It was but a declaration, the verification not adding to its quality as evidence, made by David Coble in a suit to which his intestate was not a party, and the witness himself represented another and different estate. We know of no principle on which such evidence can be used to charge the estate of Denny, nor does it become competent because the deponent defends in the present action in the capacity of its representative. The rule is thus laid down in a standard treatise on the law of evidence:
The admissions therefore of a guardian or of an executor or administrator made before he was completely clothed with that trust, or of a prochein ami made before the commencement of the suit, cannot be received either against the ward or infant in the one case, or against himself asthe representative of heirs, devisees and creditors in the other. 1 Greenl. Ev., § 179. So the admissions of one before he became assignee of a bankrupt are not receivable against him when suing as assignee. Fenwick v.Thornton, 1 M. M., 51. The same view is taken in May v. Little, 3 Ired., 27, where a declaration of the wife made in her husband's life time, but not as his agent, was after his death offered as evidence against her as his administratrix. In delivering the opinion, DANIEL, J., with his usual brevity and clearness says: "The evidence at the time being inadmissible, the ex post facto circumstances of the death of the husband, and the wifeadministering on his estate and being a party to the record does not in our opinion legitimate it. It was illegal evidence from public policy abinitio, and it is so still."
The case cited for the plaintiffs, Mushatt v. Moore, 4 Dev. Bat., 124, where an affidavit of one of the parties was read in evidence against him, is inapplicable, since the declaration and his relation to the cause were in his individual capacity. The reason excluding such testimony is that an estate, committed to the care and management of a *343 personal representative, ought not to be charged or affected by what he may have said or done before he assumed that relation, since such an act or declaration is purely personal to himself.
It must be declared there is error in admitting the deposition, and there must be a venire de novo and it is so ordered. Let this be certified.
Error. Venire de novo.