Coate v. Coate's Adm'r , 37 Ala. 695 ( 1861 )

A. J. WALKER, C. J.

The objection that. Andrew J/. Coate was incompetent,- because he was a transferror, offered as a witness to- establish a right transferred by him, .is not to be decided upondhe decisions, of this court made - before tbe adoption of the- Code. The subject is covered', by the Code, and tbe question .must be d'etermined by reference to section 2290 of tbe Code, and tbe construction of it which has been adopted- The precise objection-which we are considering, was made and overruled in tbe case of Robinson v. Tipton, (31 Ala. 595,) and by th'at..deci~ . sion wé are willing to abide..

[2.] This court .is committed to the proposition,..that tbe distributee is incompetent as a witness for the\administrator, on the ground of interest. — Walker v. Walker, 34 Ala. 469; McLemore v. Nuckolls, at the present term. Tbel witness in this case was incompetent, unless Ms incompetency was removed. To restore the competency of the witness, the plaintiff proved, that the witness had made’a ’ transfer to'two of his co-distributees, of his interest in the slaves in controversy, and the hire of them. It is-well es- - tablished, that- a release" by the distributee, of his entire -interest in the'estate, would have removed the objection. Robinson v. Tipton, supra; Gray v. Gray, 22 Ala. 233; Herndon v. Givens, 19 Ala. 313; Johnson v. Culbreath, ib. 348.; Clealand v. Huey, 18 ib. 343. But we think it is equally clear, 'both upon .principle-'and authority,- that a - mere transfer of the distributee’s interest in the subject--matter of the particular suit will' not have that effect. Notwithstanding such a transfer, the witness is interested in the remainder of the estate, in swelling the fund for the , payment of debts, and in avoiding'the imposition of costs upon the administrator, -whereby the assets .for distribution will be-diminished. The precise question was decided by this cou'rt in Abercrombie v. Hall, (6 Ala. 657,) adversely'-to the competency of the witness. See, also; Maury v. Mason, 8 Porter, 211.

[3.] As the objection to the competency of the witness last noticed-m'ay be removed upon a future trial, it is.necessary fon-us to-notice another objection. The witness is --one of the obligors in a bond given under section 1691 of 'the Code, conditioned to pay the fees and allowarices made by the probate- court on the administration, “if the prop- - .erty of the estate- is insufficient'ttherefo-r.” The liability - upon this bond'is'contingent upon the facts, that there are fees, and that allowances are made by--the court, and that the property .-of ffhe estate is insufficient therefor.” It is not a bond for the indemnity of the administrator against -the costs of the suit; and the question here ,-is>not at all analogous to that which was decided in Harris v. Plant, (31 Ala. 639,) as to the competenfiy of oneboundtoundemnify the party who offers him. The proceedings in this case are, as to the'obligors in the bond, res inter alios acta. 'We can not perceive ho-w^the judgment could be evidence ■ for them in a suit upon the bond, except in the same sense in wdiich-it would be evidence as to all the world, to prove the fact that such a-judgmcnt -was rendered. -We decide, therefore',-.that the witness, under section 2302 of the Code, ' -was not incompetent, -in consequence of his -beings an ob-ligor on the bond above-named.

Reversed -and remanded.