Foster v. Ela , 69 N.H. 460 ( 1898 )

The question presented is whether Richard was a competent witness. By our statute, when one party to cause is an executor or administrator the adverse party is not, allowed to testify to facts which occurred in the lifetime of the deceased, unless the executor or administrator elects to testify. P. S., c. 224, ss. 16-18. The reason and object of the statute is to put both parties upon an equal footing and to prevent the injustice of allowing the survivor to give his uncontradicted and unexplained account of transactions about which the deceased, if living, might testify. Welch v. Adams, 63 N.H. 344, 348. In applying the statute, regard has been had to the actual situation of the parties, whether nominal or real, in order to effectually carry out its purpose and spirit. Chase v. Chase, 66 N.H. 588, 592. The real party in interest, although not a party to the record, has not been permitted to testify. Little v. Riley, 43 N.H. 109; Perkins v. Perkins, 46 N.H. 110; Townsend v. Riley, 46 N.H. 300, 308. The party of record, who was a nominal one, has been allowed to testify when the executor or administrator did not elect to. Drew v. McDaniel, 60 N.H. 480; Emery v. Clough, 63 N.H. 552, 556. And when the executor or administrator, who was the party of record, was not prosecuting or defending in his representative capacity, but was in fact the real party in interest, whether he elected to testify or not, the other party has been permitted to testify. Harrington v. Tremblay,61 N.H. 413; Chase v. Chase, supra.

The defendant was represented by an administrator who did not elect to testify. Richard Ela was not a party of record, and whether he was a competent witness depends upon whether he was a real party in interest. It is apparent from the facts that the administrator of Richard Ela's estate, George A. Foster, is a mere nominal party. He has attended no hearings, paid no bills, summoned no witnesses, has informed counsel he will not be responsible for their bills, and has in reality had nothing to do with the prosecution of this proceeding. It is equally apparent that Richard Ela is one of the real parties in interest. As heir to his father's estate he has an interest in the estate of Joseph Ela, increased by one third of his sister's and all of his mother's interest. He was counsel for all the heirs of Joseph Ela's estate except the defendant, his fees being contingent upon the result. He petitioned for the appointment of an administrator on his father's estate for the purpose of prosecuting this proceeding. The reasons on which the exception in the statute is founded apply with full force to him as one of the real parties in interest in this cause. To allow him to testify to conversation with the deceased, and to transactions about which he if alive might testify, would accomplish the mischief the statute was designed to prevent. As one of the real parties in interest Richard Ela was an incompetent witness, and was improperly allowed to testify.

So many of the facts found and conclusions reached by the referee in his report are based upon the evidence of Richard Ela, that it is impossible to eliminate his evidence and leave any considerable part of the report. The report is set aside.

Exceptions sustained.

All concurred.