67 Cal. 89 | Cal. | 1885
This action was brought to establish a resulting trust in a parcel of land claimed to have been purchased by S. H. Collins and M. Reinstein—the latter, testator of defendants O. Reinstein and A. Vaenberg—when partners, and paid for with partnership funds. The parcel had been conveyed to M. Reinstein. The action was brought by. plaintiff as the assignee of Collins. Judgment passed for plaintiff. Defendants moved for a new trial, which was denied, and they prosecute this appeal from the judgment and order denying the new trial.
Collins, as stated above, the assignor of plaintiff and the partner of M. Reinstein, who had departed this life before the commencement of this action, was called as a witness and sworn. He had testified that he was the person named as S. H. Collins in the complaint; that he resided in San Francisco, and had business transactions with M. Reinstein in his lifetime. When this question was put to him by plaintiff’s counsel, “ what transactions did you have with him?” at this point an objection was made by counsel for defendants, as follows: —
“ Defendant objected to any testimony on the part of the witness Collins as to such transactions with said Marcus Reinstein, against the executors of said Marcus Reinstein, on the ground that the evidence is incompetent, irrelevant, and immaterial, and specially excluded by section 1880 of the Code of Civil Procedure of the State of California; it appearing from the amended complaint herein, and not denied in the answer, that said Collins is the plaintiff’s immediate assignor of the premises in controversy, and the said Marcus Reinstein died before the filing of the complaint herein.”
The objection was soon afterwards renewed, substantially, by defendants, as to any testimony of the witness relative to transactions had with Reinstein prior to his death. The objection was overruled. The witness testified fully in relation to transactions of the character referred to in the objection. An exception was reserved by defendants, and the ruling is now urged as error.
■ The question remains for determination, was Collins a competent witness as to the transactions objected to? If he was not, the court committed an error affecting materially the interests of defendants. -If he was competent, there was no error. The objection is based on section 1880 of the Code of Civil Procedure. That section, so far as relates to the question before us, is as follows:—
“Thefollowingpersonseannotbewitnesses: .... (3) Parties or assignors of parties to an action or proceeding, or persons in whose behalf an action or proceeding is prosecuted against an executor or administrator, upon a claim or demand against the estate of a deceased person, as to any matter of fact occurring before the death of such deceased person.”
We are of opinion that the witness was competent. The action was not on a claim or demand against the estate of Reinstein. The plaintiff asserted that the interest in the land sued for constituted no part of M. Reinstein’s estate, but was held in trust by Reinstein for Collins or his assigns, and after his death, by the defendants, his devisees, and successors. The defendants
We have looked into the cases of Fallon v. Butler, 21 Cal. 24, and Estate of McCausland, 52 Cal. 568, cited by counsel, but they throw little if any light upon the question herein discussed. We refer to them to show that they were not overlooked in considering this case. The evidence of Collins was neither incompetent, irrelevant, nor immaterial, and the testimony in the case was of a character sufficient to establish the trust as claimed by-plaintiff.
■ It follows that the judgment and order must be affirmed; and it is so ordered.
Myrick, J., and Sharpstein, J., concurred.