Eacott

Emery, J.

Mr. Eacott, executor of the will of Mrs. Ayer, deceased, paid $212.89 out of her estate to Horace G. Ayer, as a debt due him from Mrs. Ayer for moneys laid out and expended for her benefit at her request. The judge of probate refused to allow this item to the credit of the executor, and he appealed to the Supreme Court of Probate. In the appellate court the executor offered the deposition of Horace G. Ayer, to whom he had paid the money, containing his testimony as to facts happening before the death of the testatrix tending to show the validity of his claim for the $212.89 against her and her estate. The appellee, Mr. Marcellus Ayer one of the residuary legatees, objected to the competency of the witness to testify to such facts after the death of the testatrix. The court ruled that the witness was competent to testify to such facts, and the appellee excepted.

This is not a case between the executor representing the deceased testatrix, and a person setting up a claim or defense antagonistic to the testatrix or her estate. It is merely a case between Mr. Eacott and Mr. Marcellus Ayer, each contending solely for his own personal interests. The loss or gain by the decree will be the personal loss or gain of one or the other, and not the loss or gain of the estate. The case is, therefore, not within the statutory exception from the general statute making parties and interested persons competent witnesses. R. S., c. 82, § 98; Gunnison v. Lane, 45 Maine 165; Nash v. Reed, 46 Maine, 168; Millay v. Wiley, 46 Maine, 230; Rawson v. Knight, 73 Maine, 340. Mr. Horace G. Ayer was, therefore, a competent witness, and his deposition was admissible.

It seems that the executor paid the claim of Horace G. Ayer upon his own judgment without having it passed upon by the court or by commissioners. The burden was, therefore, upon him in settling his account to prove affirmatively that the claim so paid was actually due from the estate. The appellee contended that all the evidence, including the deposition, did not sustain the executor’s burden of proof; but the court ruled against him, and found the claim to have been a valid debt against the estate and therefore to be allowed in the executor’s account. The appellee excepted to-this ruling and finding.

This exception, of course, can only raise the question whether there was any evidence upon which the ruling and finding could be based. If there was any such evidence, its sufficiency was a question of fact upon which the finding of the court is conclusive, not to be reviewed by the law court. Hazen v. Jones, 68 Maine, 343; Brooks v. Libby, 89 Maine, 151; Pettengill v. Shoenbar, 84 Maine, 104. Horace G. Ayer testified in his deposition, — that he paid out the money for necessary repairs upon the dwelling-house of the testatrix, at her request, — that she said to him the repairs were needed, and she had no money,'and that, if he would make the repairs, he might have the place after her death by giving his sister two hundred dollars. He accordingly paid for the repairs, but she did not devise the house to him. If this testimony is true there can be inferred a promise by the testatrix to reimburse him,

Tbe appellee, nevertheless, stoutly insists that this testimony is not true, — that it is completely destroyed by the admissions of Horace and the other evidence in the case. Whether the testimony quoted was true, or not, was a question solely for the court hearing the case. Its decision of that question cannot be reviewed by the law court. See cases cited supra.

Exceptions overruled.