52 Cal. 336 | Cal. | 1877
By the amendment to the Code of Civil Procedure, made in 1874, the Legislature precluded parties to an action from testifying therein when the action is against an executor or an administrator of a deceased person upon a claim or demand against the estate of such deceased.
The present action on the note is by the executrix, and not against her, and is on a demand in favor of the estate of her testate, and not against said estate.
D. S. Terry and W. L. Dudley, for the Respondent, cited Blood v. Fairbanks, 50 Cal. 420, and Mitchell v. Hagenmeyer, 51 Cal. 108.
The third subdivision of section 1880, Code Civil Procedure, as amended in 1874, provides that the following persons cannot be witnesses: “ Parties to an action or proceeding, or in whose behalf an action or proceeding is prosecuted, against an executor or administrator, upon a claim or a demand against the estate of the deceased.” This action is brought by the executrix, and is brought, upon a demand, not against, but in favor of the estate, and therefore does not fall within the above cited provision. The Court erred in excluding the testimony of the defendant.
Judgment and order reversed, and cause remanded for a new trial.
