| Mass. | Oct 15, 1867
The statutes requiring an executor or administrator to verify the account of his administration by his oath, and to submit to examination on oath before the probate court upon any matter relating to his account, do not make him a competent witness generally in his own behalf. Gen. Sts. c. 98, § 9. Bailey v. Blanchard, 12 Pick. 166. The competency of the appellant in this case therefore dépends upon the statutes making parties to the record competent witnesses.
The Gen. Sts. c. 131, § 14, by which parties in all civil actions and proceedings, including probate and insolvency proceedings and suits in equity, are admissible as competent witnesses for themselves or any other party., contains the exception that “ where one of the original parties to the contract or cause of action in issue and on trial is dead, or is shown to the court to be insane, the other party shall not be admitted to testify in his own favor.” The purpose of this exception is to exclude a party to the record from testifying in his own favor when the other party to the contract or cause of action in issue is incapable of testifying against him. Chamberlain v. Chamberlain, 4 Allen, 184. Brown v. Brightman, 11 Allen, 226.
The appellant was not a competent witness within the letter or the spirit of this statute. The contract or cause of action in issue and on trial was his claim for services alleged to have been rendered by him to the testatrix in her lifetime. If the claim had been made against the estate of the deceased by any other person than the executor, it must have been prosecuted by action.at law, in which the claimant could not have testified in his own favor. An executor having a demand against his testator cannot proceed by action at law, because he cannot sue himself; but the appropriate manner of presenting his claim for adjudication is to charge it in his probate account, of which notice is given, so that any person interested in the estate may appear
The party plaintiff to the contract in issue and on trial, as well as the plaintiff of record, was the appellant in his individual right. The party defendant was the estate, of which the appellant was executor, but which was necessarily represented in this proceeding by the party objecting to the appellant’s claim. The statute regulating the competency of parties to the record as witnesses applies equally to probate proceedings and to actions at law. The fact that the appellant was obliged to make his individual claim by stating it in his account rendered to the court of probate, instead of in a declaration in an action at common law, gave him no right to testify in his own favor since the death of the person whom he alleged to have made the contract which was the foundation of his claim.
As the appellant, in seeking the allowance of this item in his account, was prosecuting a claim in his private behalf, and not “acting only in a representative capacity,” he was not made a competent witness by St. 1864, c. 304, § 1.
Decree affirmed.