Cronan v. Cotting, 99 Mass. 334

Cronan v. Cotting

99 Mass. 334 | Mass. | 1868

Colt, J.

The delivery of the acceptances to the defendant as security for the payment of a debt due or supposed to be due to the estate of her intestate created an obligation binding upon her personally to pay over to the plaintiff the avails thereof not needed to satisfy such indebtedness. The fact that she described herself as administratrix in a suit upon these securities cannot affect the relations of these parties. She could only bind herself in this transaction. She had no power to bind the estate she represented. The balance of the money collected, after paying the debt due from the plaintiff, was not assets of the estate in her hands; and the defendant is not liable for such balance in her representative capacity. This action is accordingly well brought for money received by the defendant to the plaintiff’s use. Ashby v. Ashby, 7 B. & C. 444. 2 Williams on Executors, 1511.

*337At the trial, the plaintiff was examined, without objection to his competency as a witness, to testify as to matters occurring since the appointment of the defendant as administratrix. And the only objection of the defendant now open to her is, that he was permitted to testify to a fact existing before such appointment, to wit, his want of knowledge of the existence of certain errors in the accounts between himself and the intestate. The defendant relied on acknowledgments made by the plaintiff both before and after the death of the intestate, of the balance claimed to be due from him to the estate. It was competent, if the plaintiff is to be regarded as coming within the terms of the last clause of the proviso in the statute making parties witnesses, for him to deny or explain such admissions made since the appointment of the administratrix. Gen. Sts. c. 131, § 14. The weight of any such admission would be entirely taken away, if made in ignorance of an existing error in the account. And this fact the plaintiff may testify to, although it should incidentally impair the effect of admissions made before the death under the same conditions of ignorance. The plaintiff cannot be deprived of the right to explain the latter admissions, because such explanation must necessarily qualify former statements. The form of the question put to the witness in this case seems unobjectionable. It is difficult to frame a question which shall direct the witness to the fact inquired of that will not be equally open to objection. The question when he first discovered what he claimed to be errors in the accounts is not a leading question. Exceptions overruled.