41 Vt. 626 | Vt. | 1869
The opinion of the court was delivered by
Counsel in the argument do not bring in question the authority of William Dawson, one of the executors of the will of- Daniel Wait, deceased, to enter into the agreement which he did on behalf of the estate, and to accept the defendant’s note for the amount disclosed in discharge and satisfaction of the claim declared upon ; nor is it denied that, if he did arrange the claim in that manner, it constitutes a complete defense to the action.
The case shows that Hiram Hall and William Dawson were the original executors of the will of their testate, Daniel Wait, and that the claim declared upon is a judgment of the probate court, approving and accepting the report of commissioners, who found a balance due the estate of eighty-one dollars and sixteen cents. On the 30th of August, 1860, and subsequent to the approval of tlie commissioners’ report, the defendant executed his promissory note,
The defense of payment, discharge, and accord and satisfaction, set up in the several pleas of the defendant, accrued subsequent to the probate of the will of Daniel Wait, and the issue of letters testamentary to Hall and Dawson, the executors therein named. Tire question as to whether the defendant was a competent witness depends upon the construction of section 24 of chapter 36 of the General Statutes. That in terms removes all disqualification existing by reason of interest in the event of a civil suit, or proeeeding at law or in equity, except in those cases which fall within Dio terms of the proviso to that section. The proviso, so far as' • .material to the question submitted, is : “Provided, * * when one Óf the original parties to the contract or cause of action in issue and on trial is dead, * * the other party shall not be admitted to testify, unless the contract in issue was originally made with a person who is living and competent to testify, except as to such . acts and contracts as have been done or made since the probate of the will or the appointment of the administrator.” The deceased executor’s estate has no interest in the demand in suit, and "the administrator as plaintiff representing only the estate of Daniel Wait, the question is whether the case is within the terms and spirit of the proviso of the act referred to, or within the terms of the exception. The note of the defendant is payable to the executors, one of whom subsequent to its execution and before trial
We are also of the opinion upon the facts disclosed by the case, that it comes within the exception to the proviso, as a party is in-express terms allowed to testify to acts and contracts material to the issue done or made subsequent to the probate of the will, or the appointment of an administrator. The defense relied upon accrued subsequent to that time, and subsequent in legal effect to the appointment of administrators on the estate of Daniel Wait.
The judgment of the county court is reversed, and the case demanded.