263 Pa. 47 | Pa. | 1919
Opinion by
The appellant, Walter A. Rose, is the executor of the will of Christina Gœhring, who died 26th January, 1912, an old and feeble woman who had for years been a confirmed invalid. She was illiterate, and, because of this circumstance added to her physical infirmities, she was dependent upon others for the management of her business affairs. For years she had entrusted her business to Garrett T. Bentel, since made one of the legatees under her will. As manager of her business, though without
This general statement of facts will be found quite sufficient in view of the legal question which we are now called upon to consider. Before the auditor the accountant was called as a witness in his own behalf. Objection was made to his competency. We do not find any specific ruling by the court on the question, but the witness was allowed to proceed evidently with a view to striking out the testimony later should it be found incompetent. During the proceeding the witness was repeatedly called to the stand on his own behalf and on each occasion the objection to his competency was renewed but not passed upon, and the witness was allowed to proceed with his testimony. The auditor in his report finds with respect to the period covered by the examination-in-chief of accountant as follows, “When Bose took the stand in his own behalf, he was interrogated fully and at length and testified explicitly about Mrs. Gcehring’s condition between 1898 and 1912, and with specific reference to the period between January 1, 1903, and June 26,1908, the period during which he was acting as attorney-in-fact— he was asked about the letter of attorney, the giving the mortgage for; $2,000, the Bochester Trust Company stock , and the Central Building Association stock, the Bochester Township property, the Tezell notes, the bunch of receipts covering a period from 1903 to 1911, both inclusive, “the little book” which covered alleged payments to Mrs. Gcehring from 1904, the date of her death, which was offered in evidence. All through his evidence he was questioned about payments made to Mrs. Gcehring and others out of these various sums he had received; about payments evidenced by the receipts and set down in his day book. In fact there was not a single item of debit or credit that was not touched on and inquired about.” A careful examination of the evidence abundantly sus'tains this finding of the auditor. Bef erring to the cross-examination of this witness, the auditor finds “that it
Tbe rule is wholly inapplicable in a case like tbe present. Where tbe examination-in-cbief of tbe witness bas been confined to matters occurring after tbe death, and tbe cross-examination is extended so as to contain matters occurring in tbe lifetime, to whatever extent, so far tbe witness is accredited by tbe opposing party, and because of this be becomes a competent witness in bis own behalf as to all such matters. Tbe party responsible for tbe removal of tbe disability of tbe witness is tbe cross-examining party; be may not remove it for bis own purpose and deny to tbe other party equal share in tbe resulting advantage. Tbe logic of tbe rule is that by extending tbe cross-examination beyond tbe limit tbe law prescribes tbe party so cross-examining makes tbe witness bis own, and accredits him just as though be bad called him in chief in tbe first instance, without qualification or restriction. In tbe present case tbe witness was called on bis own behalf and was permitted against objection to testify fully and freely as to matters that
We have referred to the undue delay that attended this proceeding. One result of this delay may be seen in the costs taxed. The costs taxed and allowed von the first two audits amounted to $287.50. The Orphans’ Court in disposing of an exception filed to this taxation, says, “It is certain that all the costs of these audits amounting to' $806.50 should not be paid out of the fund for distribution under the circumstances in the case. A considerable portion of these costs have been rendered necessary by the neglect and carelessness of the accountant, and he should be required to pay a portion of these costs. It is therefore ordered that the accountant pay the costs of the first two audits, with the exception of the stenographer’s fee......The total required to be paid by the accountant being $212......All the other costs to be paid out of the fund.” In this order we cannot concur, so far as it directs the payment of any part of the costs by the appellant. He certainly was not responsible for whatever it was that necessitated a third auditor in the case.
We sustain the exceptions filed to this order. Let the report be so amended, and as thus amended we overrule all the exceptions and confirm the report.