29 Ohio St. 85 | Ohio | 1876
The defendants below, under section SIS of the code, as amended March 28, 1875 (72 Ohio L. 77), were incompetent to testify as to facts occurring previous to the appointment of the plaintiff as guardian. They were disqualified by the negative clause in the first paragraph: “No party to a civil action shall be allowed to-testify . . . where the adverse party is the guardian or trustee of an . . . imbecile.”
The argument in favor of the plaintiffs in error is based on a misconstruction of the proviso contained in this paragraph, viz., “that nothing herein contained shall be so construed as to prevent any and all heirs, grantees, and legatees from testifying in cases to contest the validity of or to set aside a will or deed of any ancestor or grantor-under whom they may claim title.” The deed in controversy was not the deed of their ancestor, James McNicol.. Nor is the assumption of counsel, that James McNicol, had he lived, would have been a competent witness, correct. The proviso was intended to assert the competency of the “ heirs, grantees, and legatees,” “ of a deceased person,” to testify “ in cases to contest the validity of or to set aside a will or deed of an ancestor or grantor under whom they may claim title.” It was intended to prevent a construction of the next preceding clause, whereby “ a party claiming or defending as heir, grantee, or devisee of a deceased person ” might be held to be incompetent to testify in his own behalf, in the eases named in the proviso-
Motion overruled.