Campbell, Administrator v. Hammond , 203 Ark. 130 ( 1941 )

McHaney, J.

Appellant’s intestate died in Hot Springs October 25, 1940. Shortly thereafter appellant was duly appointed and qualified as administrator of his estate. On December 2, 1940, appellees, husband and wife, presented separate claims against said estate to the administrator who disallowed them. The claim of Nellie Hammond -consisted of two items: one for 114 days general house work for said intestate at $1 per day, in the sum of $114; the other for 117 days work as a practical .nurse at $3 per day, in the sum of $351, making a total claim of $465. The claim of James B. Hammond for $140 was based on an alleged contract with said intestate to pay him for his services at the rate of $60 per month. These claims were presented to and heard by the court on December 18, and Mrs. Hammond’s claim was allowed in the sum of $300 and her husband’s claim was continued. On April 30, 1941, the latter’s claim was allowed in the sum of $60. The administrator has duly-prosecuted an appeal to this court.

Both appellees were permitted to testify, without objection, as to transactions with the intestate without being called by the opposite party. This was contrary to the express language of Schedule, § 2 of the Constitution as well as § 5154 of Pope’s Digest. It is there provided “that in actions by or against executors, administrators or guardians in which .judgment may be rendered for or against them, neither party shall be allowed to testify against the other as to any transactions with or statements of the testator, intestate or ward, unless called to testify thereto by the opposite party. ’ ’ In Williams v. Walden, 82 Ark. 136, 100 S. W. 898, it was held that, in an action against an administrator to recover for services in nursing the intestate, plaintiff is incompetent to testify as to the services performed, because such testimony related to a “transaction” with intestate within the meaning of § 2 of the schedule of the Constitution. There are many other decisions of this court to the same effect. Does the fact that their testimony as to transactions with said intestate was not objected to in the lower court prevent appellant from raising the question here for the first time? In Heaslet v. Spratlin, 54 Ark. 185, 15 S. W. 461, Chief Justice Cookrill said: “But the record does not disclose that objection was made to the introduction of the testimony, and it cannot be raised here for the first time.” At that time, however, there was a different setup for probate cases, being heard in the first instance by the county judge who was also the judge of the probate court, and on appeal to the circuit court, where probate cases were tried de novo with a jury, if desired by either party. Now the setup is entirely different. Amendment No. 24 to the Constitution made the chancery judges also the judges of the probate courts in each county of their respective districts. Section 2 of said amendment amended § 35 of art. YII of the Constitution to read as follows: “Appeals may be taken from judgments and orders of courts of probate to the Supreme Court; and until otherwise provided by the General Assembly, shall be taken in the same manner as appeals from courts of chancery and subject to the same regulations and restrictions.” While this language does not specifically authorize this court to try such appeals ele novo, we think it is persuasive that such was the intent. Under the former practice there was an intermediate appellate court where such appeals were tried with a jury if desired, but under Amendment No. 24, all such appeals are direct to this court, with no opportunity being afforded either party for a jury trial, and we are of the opinion that the ends of justice will best be subserved by a trial de novo in this court, just as are chancery appeals. It is true that the probate court is still a court of law, as we held in Young v. Young, 201 Ark. 984, 147 S. W. 2d 736, where we said: “Although probate courts are presided over by the chancellor, they continue to be courts of law.” But this fact does not preclude us from trying such cases de novo under said amendment.

We, therefore, hold that appeals from the probate court are tried de novo, just as in chancery appeals, and that this court will consider only the competent evidence in the record, whether formally objected to or not. In this view of the matter, the appellees were incompetent witnesses, because their' testimony related to transactions with or statements of the intestate, and must be disregarded. When their testimony is eliminated there is not sufficient other competent evidence in the record to support the judgment of the court.

Appellees moved in a cabin on the property of said intestate in March or April, 1940, where they remained until his death. They paid no rent and were furnished lights, water and fuel free of charge. Mrs. Hammond did some work for McGrath both before and after his illness began and so did her husband who was paid for his work from-time to time by check, and on each check was a notation, “in full to date.” For instance, on May 24, 1940, Hammond was paid by check $5; on June 1, $7.50; on June 8, $6; on June 29, $6.25, arid July 6, $6. There is no evidence that intestate ever paid Mrs. Hammond anything, and no evidence, except their own, that he agreed to do so. It seems unreasonable to believe that if Mrs. Hammand had an agreement with him to pay her $1 per day for 114 days and $3 per day thereafter for 117, she would have continued to work for him for nearly two-thirds of a year without collecting anything from him. It also seems unreasonable to believe that intestate who was so careful to pay Hammond by check and note thereon payment “in full to date,” would then hire him by the month at $60 and not pay anything for more than two months.

We, therefore, conclude that the competent evidence in the record is not sufficient to establish these claims or either of them, and the judgment of the probate court must be reversed, and the cause dismissed.