Barry v. Sturdivant , 53 Miss. 490 ( 1876 )

Chalmers, J.,

delivered the opinion of the court.

Mrs- Barry was the executrix of the estate of her deceased father. Her husband held a probated claim against the estate, which, in the course of administration, she paid off, for which disbursement she prayed allowance and credit in her final settlement. The distributees of the estate filed exceptions to its allowance, and controverted the justice of the demand. The husband, the original claimant, and his wife, the executrix, were both conversant with the facts relating to the claim, and both testified to its correctness. The testimony of both was deemed incompetent, and was excluded by the Chancellor; and the claim not being sufficiently established by other evidence, the executrix was refused credit therefor on her final account.

The decision of the Chancellor, if correct, works this curious result. If the husband had brought suit upon his claim, his wife, who had no interest in it, would have been a competent witness in his favor. Code of 1871, § 760 ; Rushing v. Rushing, 52 Miss. 329. But when she has paid it off, and claims credit for her payment in her final account, both she and her husband are excluded as witnesses to establish its correctness: he, because he would be testifying to prove his own claim against the estate of a dead man; and she, because she would be establishing her final account against her testator’s estate.

Counsel for the appellant, on the other hand, insist with much plausibility that both of the witnesses were competent : the husband, because he was neither a party to the litigation, nor had any interest in it, since he had already received payment in full of his demand ; and the executrix, because as to her the claim had originated since the death of the testator, and in the course of administration. Waiving a discussion of the question whether the original holder of a claim against the estate of a decedent is a competent witness after its payment on behalf of the executor or administrator, who has discharged it, we think it clear that the executrix in this case was competent. If she be considered as testifying in behalf of the original owner of the demand, then, while it is true that she speaks as to matters occurring in the lifetime of the deceased, she is testifying about transactions which took place between the deceased and another person in which she is not interested. If, on the other hand, she be considered as testifying in support of her own final account, then she would be testifying in reference to a demand which, so far as she is concerned, originatecl after the death of the deceased in the course of administration ; and as to such matters she is expressly made competent by the provisions of the Code of 1871, § 758. The case of Haralson v. White, 38 Miss. 178, which held that an administrator was incompetent to establish the items in his final account relating to matters transpiring in the course of administration, arose before the adoption of the Code of 1871, and the rule there established is changed by the section above cited. The testimony of Mrs. Barry was therefore improperly rejected.

Viewed by the light of her testimony and the other evidence in the case, we think that all the items of her final account, as originally propounded by her, are sufficiently established, except voucher 2, for $1.25, which was paid without probate, and is unsupported by proof; and voucher 3, for $6.80, which appears to have been for articles purchased after the death of the testator. The account should have been allowed as stated, with the exception of these items.

It seems unnecessary to notice the other points discussed; but as we are asked by counsel on both sides to place a construction upon the will of the testator, and the codicils thereto, we will say that there is not, as is insisted by counsel for the executrix, devised to her by the codicil the entire estate, but, to use the language of the testator, he only “ confirms ” to her in the codicil what had been previously devised by the will, together with the additional property mentioned in the codicil itself.

The decree is reversed, and the cause remanded for decree in accordance with this opinion.