77 Ala. 524 | Ala. | 1884
The witnesses, Charles Jacobs and ITenry Jacobs, were both interested, presumptively, in the result of the present proceeding before the probate judge, as heirs of Simon Jacobs, deceased. They were incompetent, therefore, to testify as to any transaction with, or statement by the decedent, Moore, whose administrator was one of the parties to this proceeding, and whose estate was interested in the result of it. We have uniformly construed section 3058 of the Code (1876), to embrace within its scope mere beneficiaries, who are not parties to the record, but who claim as heirs, legatees, or otherwise, in succession under a decedent, whose personal representative is a party to the suit or proceedings under review, unless such persons are called to testify as witnesses by the opposite party. — Goodlett v. Kelly, 74 Ala. 213 ; Keel v. Larkin, 72 Ala. 493; Drew v. Simmons, 58 Ala. 463; McCrary v. Rash, 60 Ala. 374; Binford v. Dement, 72 Ala. 491; Dudley v. Steele, 71 Ala. 423. The court erred in refusing to sustain the objection taken by appellant to the competency of each of these witnesses.
The judgment-entry of the court, it may be proper to notice, recites that the motion to exclude these two witnesses was sustained ; but this is in conflict with the bill of exceptions, and the rule is settled, that as to matters of which the bill ought to speak, its statements predominate over the recitals of the judgment. — Hurst v. Bell, 72 Ala. 336; 1 Brick. Dig. 252, § 139 ; Reynolds v. The State, 68 Ala. 502.
The action of the court in refusing to suppress the deposition of the witness Bush was free from error; the whole question being one within the discretion of the court, so far as it was affected by the fact that a previous deposition of the same witness had already been taken. Where a deposition is retaken
The affidavit made for the taking of this deposition -was sufficiently certain to identify the cause in which it purported to be taken, describing it as “a cause now pending in the Probate Court, in the matter of the final settlement of the estate of Simon Jacobs, deceased and designating the affiant as an attorney for Henry C. Jacobs, administrator de bonis non of said estate, who is one of the parties to this cause. No other cause, moreover, is shown to have been pending in the court, with which this could be confounded, so that no latent ambiguity is shown to exist in the subject of reference.
The objections urged to the various interrogatories and answers in the deposition of Bush were properly overruled, except the one numbered 29. This called for the witness’ “reason for believing” a certain fact, and the answer given was equally irrelevant. It is true that the decedent, being himself an administrator, may probably have made out an inventory of the personal property which went into his hands for administration ; and this would be sufficient, prima facie, to charge him on settlement, for all articles enumerated in it. But it is not conclusive, even as against him, much less against others, who are interested. The same is true of an administrator’s report of sale made to the Probate Court. He is always permitted to show errors and mistakes in such documents. These papers can not be regarded as binding, in any manner, upon one who, as contestant, seeks to charge an administrator upon settlement for property shown to have gone into his hands and belonging to the estate. Such contestant may prove the facts, without any reference to such inventory or report; and these papers can not, therefore, be said to be the best evidence of such facts. The matter sought to be proved may amount to a falsification of the papers.
The judgment must be reversed, for the error above adverted to; and we do not consider the other assignments of error, as the points raised are not likely to arise upon another trial.
Beversed and remanded.
