30 Pa. Super. 151 | Pa. Super. Ct. | 1906
Opinion by
Gideon Shadle, the decedent, left to survive him S. P. Shadle, a son, and three minor children of a deceased son, of whom David Snyder, the appellant, was guardian. S. P. Shadle was appointed administrator, and to his first and final account numerous exceptions were filed by the guardian. At the first hearing before the auditor appointed to pass upon the exceptions, “ and make distribution of the balance in the hands of the administrator to those entitled thereto,” S. P. Shadle was called as if under cross-examination and testified at length in answer to questions put by counsel for the exceptant concerning the items of the account and the matters referred to in the exceptions. Some of these exceptions were as to surcharges which the exceptant claimed should be made. At a later hearing he was again called and cross-examined by the exceptant’s counsel as to these matters. At a still later hearing the accountant testified, under objections by the exceptant’s counsel, in support of an offer made by the accountant’s counsel which we quote: “ I propose by the witness to prove that after the death of his mother, his father, who had taken Gideon Shadle, Jr., to raise, came to his hotel, bringing with him Gideon, Jr., to board with him, and that at that time a contract was made between them for the payment of their boarding; for the purpose of establishing an additional claim by the accountant against the estate.” The auditor held that the accountant was not a competent witness as to this matter and, therefore, when he
We are not prepared to decide that the accountant would not have been competent to testify in his own behalf as to .matters occurring in the lifetime of the decedent, even if the party calling him for cross-examination had confined his examination strictly to matters occuring after the death of the decedent. But it is unnecessary to discuss, or express a decided opinion upon, that question; for while the cross-examination, in the main, related to the latter, yet it was not strictly confined thereto, but touched on some matters occurring in decedent’s lifetime. His cross-examination as to these matters was not very extended nor very important, it is true, but under all the authorities he thereby became a fully competent witness as to other relevant matters, whether occurring before or after the death of the decedent: Corson’s Est., 137 Pa. 160; Boyd v. Conshohocken Worsted Mills, 149 Pa. 363; Hambleton’s Est., 166 Pa. 500; Danley v. Danley, 179 Pa. 170; Watkins v. Hughes, 206 Pa. 526; Mothes’s Est., 29 Pa. Superior Ct. 462.
Was this claim a relevant matter within the meaning of the statute ? Prior to the enabling evidence statutes it was held in Pennsylvania that if a witness, disqualified by reason of interest, was called and examined generally by a party, it did not lie in the mouth of that party to object to him as incompetent when called by his adversary to testify to other facts: Turner v. Waterson, 4 W. & S. 171; Stockton v. Demuth, 7 Watts. 39. In Floyd v. Bovard, 6 W. & S. 75, Chief Justice Gibson commented on the English practice under which the new matter might be brought out under cross-examination, and after showing that under the practice here the cross-examination of a witness must be confined to the subject-matter of his direct testimony, concluded, both upon reason and authority, that the party first calling him thereby rebutted the presumption arising from interest and made him a competent witness
The testimony of the accountant was to the effect that after the death of his mother his father, the decedent, came to live with him at his hotel, bringing with him a grandson, toward whom he stood in loco parentis, and that they continued to board with him until the decedent’s death. As to the contract between them he testified : “ He said he would pay me for the boarding, as there was enough left, and that I should not do this for nothing, and that he would pay me for boarding them.” “ Q. By them he meant who ? A. Why, my father and Gideon, Jr.” On cross-examination he testified : “ Q. Your father, Mr. Shadle, told you that he would pay you for the boarding of himself and Gideon? A. Yes, sir. Q. Did he specify the amount which he would pay ? A. No. Q. He seemed satisfied that there was enough left to pay you ? A. He said you need not to keep me for nothing, you need not to keep us for nothing, I have got so much left that I will pay; he says you need not keep me for nothing, and he says, I will pay you.” This testimony was corroborated by the testimony of Jonas Garman and L. H. Zeigler as to declarations which the decedent made
The question raised by the fifth assignment of error was fully considered by the learned judge of the orphans’ court in that part of his opinion which relates to the fourth exception of the accountant to the auditor’s report. It involves a question of fact, and we are of opinion that this was correctly determined by the court. All that need be said concerning it is contained in that portion of the learned judge’s opinion above referred to.
The decree is affirmed and the appeal dismissed, the costs of the appeal to be paid by David Snyder, guardian.