The administrator was properly allowed to testify to facts occurring in the lifetime of the intestate; but by testifying he did not render the testimony of the plaintiff admissible, for he was a stranger to the suit and had no right to control it. Smith v. Wells, 70 N.H. 49, 52; Wheeler v. Towns, 43 N.H. 56, 57. The defendant, an heir to the estate, by filing the bond required by section 4, chapter 193, Public Statutes, and prosecuting the appeal, became the legal representative of the estate with respect to the matters in dispute in this suit, and entitled to exercise the election conferred by section 16, chapter 224, Public Statutes. Bean v. Bean,71 N.H. 538, 540; Whitaker v. Marsh, 62 N.H. 477, 478; Tuck v. Nelson,62 N.H. 469; Perkins v. Perkins, 58 N.H. 405.
The plaintiff was not entitled as a matter of right to testify to facts occurring in the lifetime of the intestate. Stevens v. Moulton,68 N.H. 254, 257; P. S., c. 224, s. 16. In fact, she was
not permitted to testify until after the administrator had testified. This was probably done upon the assumption that the administrator represented the estate in this proceeding and by testifying had waived his right to object to the plaintiff's testimony; but as we have seen, he did not represent the estate, and its admission cannot be sustained upon this ground. The commissioner (Foster v. Clark, 61 N.H. 29, 31; Perkins v. Perkins, 46 N.H. 110, 111; Moore v. Taylor, 44 N.H. 370; P. S., c. 192, s. 7.) and the court upon appeal, in the exercise of the discretionary power conferred upon them by statute (Parsons v. Wentworth, 73 N.H. 122, 123; Moore v. Taylor, 44 N.H. 370, 372, 374; Dyer v. Stanwood, 7 N.H. 261; P. S., c. 224, s. 17), might under certain circumstances have permitted the plaintiff to testify to facts occurring in the lifetime of the intestate; but in this case that power was improperly exercised, if it was attempted, for it appears that the intestate had personal knowledge of the matters about which the plaintiff testified, and if alive could have testified to them herself. Moore v. Taylor, 44 N.H. 370, 375; Chandler v. Davis,47 N.H. 462; Tuck v. Nelson, 62 N.H. 469, 471, 472; Simpson v. Gafney,66 N.H. 261, 262; Parsons v. Wentworth, 73 N.H. 122, 123.
The question therefore remains whether the defendant, by finally taking the stand and testifying generally, waived his exception to the admission of the plaintiff's testimony. We think he did not. The ruling of the court permitting the plaintiff to testify, though erroneous, was the law of the trial, and the defendant was bound to recognize it as such. Batchelder v. Railway, 72 N.H. 329, 331. He was not required to stake his case upon the exception, but was entitled to proceed with the trial in conformity to the ruling and still have his rights under the exception preserved. The case presents no elements of estoppel. A different conclusion was reached upon this question in Tilton v. Tilton, 41 N.H. 479, 481, but we are not inclined to follow it.
Exception sustained.
All concurred.