Guldin's Administrators v. Guldin's Administrator

97 Pa. 411 | Pa. | 1881

Mr. Justice Trunkey

delivered the opinion of the court, March 28th 1881.

This action is by the administrator of Hannah Guldin, deceased, against the administrators of William C. Guldin, deceased. In the trial the Act of April 15th 1869, Pamph. L. 30, by its express terms had no application.

Two acts were passed on March 27th 1865, Pamph. L. 38, relating to witnesses and evidence. One was entitled “An act relating to the admission of parties to judicial proceedings as witnesses in certain cases,” and provided that in all trials and judicial proceedings an administrator or other person acting in a fiduciary or representative capacity, although a party to the proceeding, not having an interest in the subject-matter of the controversy, may be examined as a witness. Hence, in suits by or against administrators, when they are not interested otherwise than their right to compensation out of the estate for their services, they are as competent witnesses as strangers to the record and subject of controversy. The other is entitled “An act amending the law of evidence in Pennsylvania,” and enables any party to compel any adverse party or person for whose immediate and adverse benefit the action is prosecuted or defended to testify in his behalf. Obviously this applies'to a real party, and not to one who sues or is sued as the representative merely. These acts are to be construed together. Their titles are to be considered being a part thereof under the constitutional amendment of 1864. One applies to a party who is a representative, the other to a party in interest. Under the law of evidence, a necessary party to the record, because of his trust relation, could not be a witness in behalf of the beneficiary or trust estate, and the statute makes him competent. Any person not a party, although interested, could be called to testify against his interest, and the statute puts a party on the same footing. The intendment of these statutes is to enable one party to call the opposite party to testify against his interest, and to make any uninterested fiduciary party a competent witness in the cause. They make no interested person or party competent to testify in his own behalf

Is a person sued as administrator of an estate, who is directly interested in the plaintiff’s recovery, a competent witness for the plaintiff? A. sues B., and C-, being interested in A.’s recovery, is incompetent as a witness for A. Pending the suit B. dies, and O. takes out letters of administration and is substituted as party defendant. Nothing but: perversion of the statutes will enable A. to call O. to testify. And if the suit were not commenced until after B.’s death and O.’s appointment as administrator, he, continuing to be interested against the estate, would be as clearly incompetent for the plaintiff.

Hannah Guldin died intestate, leaving children, of whom were William O. Guldin and Benjamin H. Guldin. Afterwards, William C. died, leaving a widow, but no children. Benjamin II. Guldin, one of the administrators of William C., is interested in both estates represented in this action — he is entitled to a distributive share in half his brother’s personal estate and in the whole of his mother’s.

A witness whose interest is equal 'between the parties is competent. If it be doubtful whether it preponderates in favor of the party calling him, the court should permit him to testify, and instruct the jury if they found his interest in favor of the party calling him was greater than he had in favor of the other, they should reject his testimony: Rees v. Livingston, 5 Wright 113. Benjamin H. Guldin had a certain and preponderating interest in favor of the plaintiff, and he was incompetent to testify on that side: 1 Greenl. Evidence, sect. 391; Keymborg & Co. v. Burbridge & Co., 1 Jones 535.

The charge of the court was upon the evidence received, and no other question raised by the assignments requires notice.

Judgment reversed, and a venire facias de novo awarded.