Dunbar v. Chevalier

Mr. Justice HaNDY

delivered the opinion of the court.

This suit was brought by the defendant in error against the plaintiff in error, to recover the amount of an account claimed to be due the defendant in error for medical services, &c., rendered the intestate of the plaintiffs in error.

On the trial, the defendants below tendered as a witness Mrs. Affleck, one of the residuary legatees of the defendants’ intestate. Upon objection being made by the plaintiff to her competency on that ground, the defendants, in order to show her want of interest, produced an instrument of writing duly executed by her, whereby she released and assigned to her co-legatees so much of her share and proportion of the estate as would be equal to a like proportion of the debt and costs demanded in the suit, as well in the event of a recovery in the suit, as of its being defeated.

They also produced a release and discharge of the defendants to the witness for all claim for contribution on account of the claim sued for.

The court held the witness to be incompetent, notwithstanding these releases, and refused to permit her to testify for the defendants; and this presents the only question for consideration.

If the witness in any event could be a loser by the success of the suit or a gainer by the defeat of it, it is clear that she was interested in law in the result of it, and incompetent to testify for the party through whom her interest was involved. But do the releases absolve her from all such interest ?

If the suit should be defeated, her release to her co-legatees would certainly debar her of so much of the estate as might be thereby saved for the residuary legatees, and in reference to that result of the suit, she would be rendered competent. But how does the matter stand if the debt should be recovered and the estate compelled to pay it ? Could the transfer to the co-legatees of so much of her share of the estate as might be required to pay her proportion of the judgment, absolve the amount due her for her share of the estate from the judgment ? It certainly would not. It would be but an acquittance or assignment of .so much of her share of the estate, without any thing to discharge the balance due her from liability for the debts of the estate. Her release or transfer of a part of her share of the estate, could not absolve the balance due her from liability for the debts of the estate.

.Nor could the release ,of the executors to her for contribution to pay the debt, discharge her share from liability. In the event of the debt being established against the estate, the entire property was bound for its payment. The executors had no power to discharge the share of one legatee from its payment, and thereby cause it to fall upon the shares of the other legatees. Nor had they power to bind the other legatees not to call upon this witness for contribution. The liability to contribution was a right of the other legatees against the witness, with which the executors had nothing to do, their duty being solely to apply the assets in their hands to the payment of the debt; and the rights of the residuary legatees thereupon attached beyond the legal power of the executors.

It cannot be taken into consideration, in determining the competency of the witness, that the co-legatees would apply the amount transferred or released' to them, to the payment of the judgment, if recovered, and thereby discharge this legatee from all liability for the debt. Such might have been the intention in making the release. But it has not such legal effect, and there is no obligation upon the co-legatees to discharge the witness from contribution, or to apply the amount released or transferred to them in payment of the judgment.

We think, therefore, that the witness was in law interested in the result of the suit, and that she was properly excluded.

The judgment is affirmed.