Drew v. McDaniel

Upon the facts found by the referee, it was a proper exercise of discretion to allow the plaintiff to testify. The administrator did not appear, nor make any defence. The real defendants were the plaintiff's brothers, but they did not represent the estate. They appeared to protect their own interests, and the case may be fairly treated as a suit between the plaintiff on one side and her brothers on the other. But if it be said that they represent the estate, the result is the same, for they elected to testify, and the plaintiff only testified in rebuttal.

The reasons for permitting a party to testify where the adverse party is an executor or administrator, and the circumstances under which it may be done, are stated in Moore v. Taylor, 44 N.H. 375, Chandler v. Davis,47 N.H. 465, Brown v. Brown, 48 N.H. 90, True v. Shepard, 51 N.H. 501, Stearns v. Wright, 51 N.H. 600, 611, and Perkins v. Perkins, 58 N.H. 405. This case falls within the principle of those cases.

The other question is, whether presenting the note to the commissioner was a waiver of the mortgage to secure it. The referee has not found an intention on the part of the mortgagor to waive her claim under the mortgage. Prior to the Revised Statutes, the claimant, holding a mortgage as security for his debt, could have his claim allowed in full, and, after taking the dividend, hold the mortgage as security for the balance. Moses v. Ranlet, 2 N.H. 488. On the revision of the statutes in 1842, the provision, substantially as now existing, was incorporated into the statutes; and now the claimant, holding security of less amount than his debt, may present his claim to the commissioner, and it is made his duty to estimate the value of the security, and allow the difference between the amount of the debt and the value of the security as a claim against the estate. Rev. Sts., c. 162, s. 10; G. L., c. 199, s. 10.

These provisions show that it was not understood by the legislature that presenting the claim was a waiver of the security. The fact that in this case there was no estimate of the value of the security is not material, for the commissioner disallowed the claim upon the ground of the incapacity of the deceased to make the note secured by the mortgage.

In view of these facts, the first case should be recommitted to the referee to find the value of the security, and the difference between that and the amount due on the note should be certified to the probate court and entered on the list of claims against the estate; and in the second case, the plaintiff should have conditional judgment as of mortgage for the demanded premises.

Exceptions overruled.

CLARK, J., did not sit: the others concurred.