Granger v. Bassett, 98 Mass. 462

Granger v. Bassett

98 Mass. 462 | Mass. | 1868

Wells, J.

1. The first point relied upon by the appellant in the argument is, that the refusal to appoint some person to take down the evidence produced at the hearing before the single justice was erroneous. The appellant offered no witnesses to be examined orally; but relied upon the inventories and accounts on file in the probate court, the books, papers, statements and explanations called out by the examination of the executors' themselves. This examination is reported by the justice who heard the case. The Gen. Sts. c. 113, § 21, provide for such a *467eport, either “ by the justice before whom the hearing is had, or by some person designated by him for that purpose.” The 34th Rule in Chancery is, by the 37th Rule, made to apply to hearings upon probate appeals, only so far as applicable. If it is ever to be regarded as peremptory, we think it cannot be so in hearings of this nature.

2, 3. The second and third points seem to rest upon the assumption that, in the settlement of the account of Granger and Baleh as executors of the will of Nancy Horton, all former accounts, not only of Granger alone, as administrator de bonis non of the estate of James Horton, and as executor of the will of William Horton, but also the account of William Horton as executor of the will of James Horton, may be opened for the correction of errors and omissions, so as to charge these accountants therewith. But such is clearly neither the effect nor the intention of the statute. Gen. Sts. c. 98, § 12. Only former accounts in the course of the settlement of the same estate can be so opened. The proceedings in other estates, although the same person be executor or administrator, and although the property of one be derived from the other, are collateral merely, as judicial proceedings. The accounts which the appellant seeks to have opened were rendered in the lifetime of the testatrix, Nancy Horton. She had full opportunity to be heard; she examined them and indorsed upon each her consent that it should be allowed. The correctness of accounts so assented to and allowed cannot be called in question collaterally. They are conclusive for all purposes affecting the account of these executors. This renders it unnecessary to consider the effect of the release upon income previously received, or any other questions arising from the former probate accounts.

4. The fourth point relates to an adjustment of income between Granger, as executor of William Horton’s will, and Nancy Horton, in her lifetime, after the date of the former accounts. Undoubtedly if this income still remained in Granger’s hands he would be bound to account for it as a debt due from himself to his testatrix. The principal question here is, whether Granger himself was a competent witness to prove that Nancy Horton *468had received her share of that income during her life. The statute admits parties to testify except “ where one of the origina, parties to the contract or cause of action in issue and on trial is dead,” &c. Gen. Sts. c. 131, § 14. The test of competency is “ the contract or cause of action in issue and on trial,” not the fact to which the party is called to testify. If the cause of action was a matter transacted with a person who has deceased, the other party to that transaction, being also party to the suit, is not admitted as a witness at all; and cannot testify to any fact in the case. Otherwise he is admitted as a witness ; and, being so admitted, the statute contains no restriction nor limitation as to the facts to which his testimony may or may not be directed. His competency must be determined in advance by the nature of the controversy and the questions in issue. If, upon that test, he is admitted as a witness in the case, his testimony is competent for all purposes, although it may relate to transactions with a person since deceased, which prove to be involved in or to affect the matter in dispute. In the trial of an issue upon the personal claim of an executor or administrator against the estate, under Gen. Sts. c. 97, §§ 26, 27, the proviso would undoubtedly exclude him from testifying. See Ela v. Edwards, 97 Mass. 318. The claim of a debt due from the executor to his testatrix was not put in issue by these proceedings, and did not appear to be on trial. It became a disputed fact in the course of the testimony of the executor who had been properly admitted as a witness generally in the case. No objection appears to have been made to the testimony at the hearing, and it does not appear but that the testimony on this point may have been in answer to inquiries put by the appellant himself. The question of its competency therefore is not fairly open to the argument of the appellant here. But, if objection had been made, the particular objectionable testimony could not have been excluded.

There being nothing to control the testimony of Granger upon this point, there is no ground for charging him with any sum as due from him to the testatrix; and, of course, no inferences can cie drawn from the asserted fact that he “ kept back ” a large *469sum from his probate account. No question is made but that the release properly applied to this portion of the income.

5. The Gen. Sts. c. 97, § 24, do not change the rule of law which held dividends from the profits of business of incorporated companies not to be apportionable. Foote, appellant, 22 Pick. 299. Such dividends are not only contingent, but uncertain in amount, until the expiration of the full period for which they are declared.

6. The probate court had no authority aver the distribution of the residuary legacies. The relative lights of the legatees, and other questions affecting such distribution, cannot properly be heard upon the settlement of the executor’s account. For the same reason, the executor should not be allowed for their payment in his account, as the effect of such allowance, if any effect can be given to it, would be to prejudice the rights of those who should claim a larger share than had been paid them. The settlement of the account should determine the amount of residue subject to distribution, but not the rights or shares of those who are entitled.

Accordingly the decree of the probate court is to be affirmed, except as to the payments by way of distribution among the residuary legatees.