Swift v. Martin

| Mo. Ct. App. | Nov 23, 1885

I.

Hall, J.

“If one, who'is neither executor nor administrator, intermeddles with the goods of the deceased, or does any other act characteristic of the office of executor, he thereby makes himself what is called in law, an executor of his own wrong, or, more usually, an executor de son tort.” 1 Williams on Executors, 148 ; see, also, Foster v. Nowlin, 4 Mo. 18" court="Mo." date_filed="1835-05-15" href="https://app.midpage.ai/document/foster-v-nowlin-6609563?utm_source=webapp" opinion_id="6609563">4 Mo. 18; Craslin et al. v. Baker, 8 Mo. 437" court="Mo." date_filed="1844-01-15" href="https://app.midpage.ai/document/craslin-v-baker-6611066?utm_source=webapp" opinion_id="6611066">8 Mo. 437; Graves, Adm’r, v. Poage, 17 Mo. 91" court="Mo." date_filed="1852-10-15" href="https://app.midpage.ai/document/graves-administrator-v-poage-7998918?utm_source=webapp" opinion_id="7998918">17 Mo. 91; Magner v. Ryan, 19 Mo. 196" court="Mo." date_filed="1853-10-15" href="https://app.midpage.ai/document/magner-v-ryan-7999224?utm_source=webapp" opinion_id="7999224">19 Mo. 196.

“ When a man has so acted as to’ become in law an executor de son tort, he thereby renders himself liable, not only to an action by the rightful executor or administrator, but also to be sued as executor by a creditor of the deceased, or by a legatee.” 1 Williams on Executors, 153, 154.

The material facts of this case were stated in the petition. Those facts constitute a good cause of action. Under those facts Nancy Swift was an executrix of her husband’s estate of her own wrong, and as such was in her lifetime liable. After her death this action was properly brought. The objection to the sufficiency of the petition made by defendant, was properly overruled by the trial court. The defendant’s first declaration of law was, also properly refused.

The defendant is in error, in contending that the only ground upon which this action can be sustained, is, “that, had the debtors, Lillybridge and Liggett, paid the money due by their respective contracts to Nancy Swift, .with the understanding and agreement of all parties that she would pay it to the legal representative of Luther, and that such legal representative had agreed to look to her for payment, then there would have been a novation, and Lillybridge and Ligget released and the new contract substituted for the old one.” Without admitting the correctness of defendant’s contention in any case, it is sufficient, in this case, to say that the defendant is in error for the reasons already given. Nancy Swift was in her lifetime liable, as an executrix of her own wrong, for the money of Luther Swift’s estate collected by her. Her estate since her death is thus liable.

II.

The declaration of law, number three, asked by the defendant was properly refused. The cause of action here does not in any way depend upon the original debts. Nancy Swift collected those debts under circumstances which made her liable as an executrix of her own wrong, of Luther Swift’s estate. Upon that liability, and not upon the original debts, the cause of action in this case is based.

III.

The remaining question in this case is, “ was Lilly-bridge a competent witness ?”

At common law, “ where the husband or wife is not a party to the record, but yet has an interest directly involved in the suit, and is, therefore, incompetent to testify, the other is also incompetent.” 1 Gfreenleaf on Evidence, sect. 341.

And a distributee, being a brother of the deceased, and not being a party to the record, has been held to have such an interest, as at common law to render it incompetent for him to give evidence, “when that evidence would have the effect to enlarge the distributive share,” or “to exempt the distributive fund from a payment or burden.” Foster & Foster v. Nowlin, 4 Mo. 22, and authorities cited.

“ Children of an intestate cannot be witnesses for the estate because of interest.” This of course at common law. Graves & Ravenscraft, Adm’rs, etc., v. Priest, 1 Mo. 214" court="Mo." date_filed="1822-05-15" href="https://app.midpage.ai/document/graves-v-priest-6608275?utm_source=webapp" opinion_id="6608275">1 Mo. 214; 2 Bac. 584, 587.

“In an action by an administrator against a debtor of the intestate, a person entitled to a distributive share of the estate wall not be a competent witness to support the action.” 3 Philips on Evidence, 50.

It would thus appear that, at common law, the wife of the witness, Lillybridge, on account of her interest as a- distributee of the estate of Luther Swift, would not have been for the plaintiff a competent witness, and that Lillybridge, on account of being her husband, would not have been a competent witness. The common law disability as to her on account of his interest, has been removed by our statutes. Rev. Stat., sect. 4010. The question is, has the common law disability of the witness, Lillybridge, on account of being the husband of the distributee, been removed? It has not been removed. Neither sections 4010 nor 4014, Revised Statutes, has removed such disability.

For this reason the judgment must be reversed. We cannot say that the judgment is for the right party, for without the testimony of Lillybridge, the payment of his debt to Nancy Swift was not shown. Judgment reversed and cause remanded.

All concur.