As the executrix did not elect to testify, the plaintiff was properly excluded as a witness to all facts occurring in the lifetime of the deceased as to which the deceased could have testified if living. P. S., c. 224, ss. 16, 17; Parsons v. Wentworth, 73 N.H. 122; Perkins v. Perkins,68 N.H. 264. Under the settled construction of the statute, the plaintiff could not testify to what Smith did or told him; nor to the contents of the letters, if Smith had seen them and therefore could have testified to their contents. Welch v. Adams, 63 N.H. 344, 351. The plaintiff's testimony was not competent unless the contrary appeared. Harvey v. Hilliard,47 N.H. 551; Fosgate v. Thompson, 54 N.H. 455; Parsons v. Wentworth, supra.

Exception overruled.

All concurred. *Page 240