4 Denio 85 | N.Y. Sup. Ct. | 1847
Skinner was a material witness to prove the plaintiff’s cause of action. At the close of his direct examination, the counsel for the defendant offered to prove by the witness that he was a creditor of the deceased when he died, and was so still. It was stated by the counsel that he designed to show by this witness and otherwise, not only that he was such creditor, but also that the estate of the deceased was insolvent; upon which it would be contended that the witness was incompetent to give evidence to maintain the action. This was the substance of the offer, and, being objected to by the plaintiff’s counsel, the evidence was rejected and the counsel for the defendant excepted.
On precisely such a question as this Lord Ellenborough said, “ It strikes me that the witness has such an interest in the verdict as to render him incompetent. At present he has no means of obtaining any sort of satisfaction for his debt: but if the plaintiff succeeds in this action, a fund will be created out of which he may be satisfied. He gives evidence to get money for himself through the medium of the administrator, who may be considered as his trustee.” (Craig v. Cundell, 1 Camp. 381.) In Young v. Martin, (3 S. & R. 427,) Tilghman, C. J., expressed himself to the same effect, and the position seems to me sound in principle. Discordant opinions, I am aware, have been expressed, on the point, and the decisions on kindred questions are not in perfect harmony. At the same time, I believe it has in no case been adjudged, that a creditor of a deceased insolvent was a competent witness to prove a cause of action in favor of the executor or administrator of such deceased person. Where the insolvency of the estate is not clearly shown, I grant that the creditor is competent; but that fact appearing, his interest is direct and immediate, and he is necessarily in
A residuary legatee is incompetent to prove a debt in favor of the executor. (Campbell v. Tousey, 7 Cowen, 66; 1 Phil. Ev. 63.) As also is a party entitled to a distributive share of the estate. But a distributee is competent to give evidence for the administrator in support of the plea of plene administravit, for he has no interest in that question, as the plaintiff, if the plea is sustained, will take judgment for assets in futuro. (Vultee v. Raynor, 2 Hall, 378.) And for the same purpose an unsatisfied creditor of the deceased would be competent. (Davies v. Davies, 1 M. & M. 345.) In this case Parke, J. expressed a doubt as to the principle on which Craig v. Cundell, (supra,) was decided, but he seems to have overlooked the facts which distinguish between the two cases. In the first place the estate, in the case of Craig v. Cundell, was insolvent, which was not proved or suggested in the other. And in the next, the witness, in Craig v. Cundell, was called to prove a cause of action and thus increase the fund for the payment of debts, whereas in the other case, the witness was only called to prove the plea of plene administravit. These cases are plainly distinguishable, and the authority of the principle stated by Lord Ellenborough in Craig v. Cundell, is not at all shaken
Most of the cases upon the precise question in this case, and upon analogous principles, may be found in the notes to Cowen & Hill to which I have referred. (See also 1 Stark. Ev. Phil. ed. 1842, p. 151, and notes; and 1 Greenl. Ev. 2d ed. § 392.) Those who choose to examiné the question more at large will here find ample materials for their purpose. I have stated the principle on which such a witness seems to me incompetent, and it appears to me so reasonable of itself that it does not stand greatly in need of support from any quarter.
The judgment must be reversed on the ground already stated. This, probably, may be avoided on another trial by a release; but I do not, at present, see how the plaintiff below is to surmount the other difficulty which his case presents.
It is not denied that the surrogate of the county of Niagara was the proper officer to grant letters of administration on the estate of the deceased. His jurisdiction in this respect was undoubted, although he may have erred in refusing to appoint the brother of the deceased, to administer on his estate. Grant that he did so, still it does not follow that the appointment of Lowry, although it may have been irregular, was therefore void. It certainly was not; the surrogate had jurisdiction to make the appointment, and the letter's of administration granted to him were conclusive evidence of his authority as such administrator, until reversed or revoked according to law. (2 R. S. 80, § 56.) Lowly was thus made administrator, and he complied with the requirements of the law by giving bond and taking the necessary oath. He was thus a legal administrator of the estate, and not the less so because the appointment may have been ^irregular. The question here is, was the appointment void, not whether it was merely voidable. The latter, it may have been, but the former it was not. Lowry, however, subsequently offered his resignation of the place, and returned his letters of administration to the surrogate, who accepted them, and as far as his order could go, discharged Lowry from his trust and duty as such administrator. But this a surrogate
Judgment reversed.