Daily's Adm'r v. Daily , 66 Ala. 266 ( 1880 )

STONE, J.

There is nothing in the objection that Neely Daily was incompetent to testify as a witness in this case. He was not a party to the suit. In fact, he had no interest in the result of the suit, as that phrase is understood in the law. The statute, in its letter, is confined to parties to the suit. “ Neither party shall be allowed to testify against the •other, as to any transaction with, or statement by any deceased person, whose estate is interested in the result of such suit.” Code of 1876, § 3058. There is a clause in the statute, making a further exception to the general rule allowing parties to be witnesses for themselves, but it exerts no influence in this case. The exception to the rule of competency is limited to parties to the suit. We have so interpreted this language .as to make it embrace beneficiaries, directly interested in the result of the suit, although not named on the record; but we have gone no farther.—Ala. Gold Life Ins. Co. v. Sledge, 62 Ala. 566; McCreary v. Rash, 60 Ala. 374; Tisdale v. Maxwell, 58 Ala. 40.

The remaining exceptions present questions of kindred -character. The suit is against George J. Daily, in his representative capacity — an attempt to charge, not him personally, but the- estate of his intestate in his hands. One item was for corn fed to the stock of the estate, at the request of the administrator, made after his appointment. Such agreement is but the personal contract of tbe administrator, and is no charge on the estate, when demanded by the creditor. The administrator can pay such debt, when rightly incurred, and can obtain therefor, in his settlement, a credit for such proper disbursement.—Henderson v. Simmons, 33 Ala. 291; Greening v. Sheffield, Minor, 276; McEldery v. McKenzie, 2 Por. 33; Kirkman v. Benham, 28 Ala. 501. The other item of the claim is for an alleged conversion by the administrator of personal chattels belonging to the plaintiff. Such claim against an administrator in his representative capacity presents a solecism. If the chattels converted were the property of the plaintiff, then the appointment of the administrator gave him no authority over them. He was only authorized to possess himself of the goods, which were of the estate of his intestate. ÍSuch conversion would be the personal tort of the administrator, and he alone, and personally, would be responsible for such conversion. If the chattels belonged to the estate of the intestate, then neither the plaintiff nor anyone else could, maintain an action for their valué.—Burdine v. Roper, 7 Ala. 466; Godbold v. Roberts, 20 Ala. 354; Shorter v. Urquhart, 28 Ala. 360.

The act of April 8th, 1873 (Code of 1876, § 3747), exerts no influence in this case. Neither of the items claimed is for labor or services rendered the trust estate.

Reversed and remanded.