WHEN AN INCOMPETENT WITNESS MAY TESTIFY IN HIS OWN BEHALF.

Court of Appeals for Portage County.

#### In the Matter of the Estate of Mary S. Alger, Deceased.

Decided, October 1, 1918.

*Evidence*— ExectUor *Made a Competent Witness for All Purposes*— By *Being Called by an Exceptor for a Single Purpose-^-If Testimony Against Interest is Worthy of Credit, that which is Favorable to the Witness Must Also be Received.*

If a party in an action, who is prevented from testifying by reason of the provision of Section 11495 of the General Code, is examined as a witness on certain issues in the case by the adverse party under Section 11497, he then becomes a competent witness in the ease, and may testify in his own behalf in regard to all the issues in the case.

*H. B.*Loomis, for exceptor.

*8. F. Hanselman*and *A. 8.*Cole, for executor.

Pollock, J..

Donald E. Alger was appointed by tbe probate court of this county executor of the will of Mary S. Alger, deceased. After he had filed his inventory and appraisement, W. B. Alger, an heir of the estate and interested in the distribution of its assets, filed exceptions to the inventory and appraisement of the executor. The exceptions charged, in substance, that the 'executor had failed to inventory and appraise a certain indebtedness of his own to the estate. The 'exceptor asked that the court require an inventory and appraisement of that indebtedness. After the exceptions were heard in the probate court, an appeal was taken to the court of common pleas, and it was again heard upon the testimony, resulting in a judgment against the exceptor.

This action in error is prosecuted to reverse that judgment on two grounds; first, for error in permitting the executor to testify in his own behalf; and, second, that the judgment of the court below is against the weight of the evidence.

*312We will take these claimed errors in their order. The executor was first called by the exceptor and examined as a witness. He testified on that examination that Mrs. Alger was his mother, and that for many years prior to her death she was living with him; that during that time she had a small tract of real estate which he rented and collected the rent. He says that frequently he retained the rent money, and that she gave him other money; that each time he would give his note therefor, and that after the first time he gave her his note, when he retained any of the rent money or received other money from her it would be added to the amount of the note and a new note given for the total amount. This was continued until about two years prior to her death, when she held his note for about seven hundred dollars. This was as far as the examination on the part of the exceptor went. After the introduction of some other testimony, the exceptor rested. .

During the time the executor was offering his testimony he offered himself as a witness, and over the objection of the exceptor was permitted to testify that about two years prior to the time of his mother’s death he had a conversation with her in which he claimed that on account of his father, in his lifetime, having collected money which was due witness, this note should be surrendered to him. He testifies that his mother agreed-to this arrangement and gave him the note, intending to surrender it and release him from the payment of the amount due thereon, and the note was destroyed.

It is now urged that the court below committed error in permitting the executor to testify in his own behalf.

In this hearing the executor’s interest was adverse to that of his 'estate, and for that reason he was an adverse party under the statute.

Section 11496 of the General Code reads as follows, as far as the question now before us is concerned:

> “A party shall not testify when the adverse party is the guardian or trustee of either a deaf and dumb or an insane person, or of a child or a deceased person, or is an executor or administrator, or claims or defends as heir, grantee, assignee, devisee, or legatee of a deceased person. ’ ’

*313But Section 11497 of the General Code provides:

> 1 ‘At the instance of the adverse party, a party may be examined as if under cross-examination, either orally, or by deposition, like any other witness. * * “ The party calling for such examination shall not thereby be concluded but may rebut it by counter-testimony. ’ ’

This section gave the exceptor the right to call the executor and examine him as a witness. The executor is the only witness that testifies to this indebtedness or to his release from paying it, so that his testimony was material to both parties in the action.

The Supreme Court of this state had a somewhat similar question before them in the case of *Legg*v. *Drake,*1 O. S., 248. In the third paragraph of the syllabus, they say:

> “Where a party to an action is called upon and introduced as a witness on the trial, by the adverse party, under the act of March, 1850, to improve the law of evidence, the objection to his competency is waived, and he becomes competent as a witness on the trial for all purposes. ’ ’ i

This act of March, 1850, was, so far as we are able to determine, the first innovation in Ohio on the common law rule that a party in interest in an action could not testify, and in this ease they hold that while the party was an incompetent witness in his own behalf, yet by thé opposite party calling him, he waived his ineompetency, and it was competent to examine him on any issue in the case.

Again, the Supreme Court said:

> “A waiver of objection to the competency of a witness so as to allow his deposition to be taken in a case is a waiver during the whole progress of the cause, and the objection can not be insisted on where the witness is called to give a second deposition in the same case.” *Chateau et al*v. *Thompson et al,*3 O. S., 424.

These cases recognize the principle that a party can not give credit to the opposite party by calling him as a witness, and then afterwards objecting to his full examination in the ease.

When we look to the decisions of the various courts outside of this state, under similar statutes, they seem to be universally in *314favor of the proposition that where a witness is incompetent on his own behalf, but may be called by the adverse party, and the adverse party calls such a witness and examines him, he then becomes competent for all issues as a witness in the ease.

> “If a party puts an incompetent witness on the stand,-he makes him competent in the cause for either party.

> “Under the Act of March 27th, 1865, allowing a party to call his adversary as a witness, the party if thus called is made a witness for all purposes on his own side.” *Seip*v. *Storch,*52 Pa. St., 210.

Sutherland, J., in the opinion in the case of *Fulton Bank*v. *Stafford,*Second Wendell, 485, said:

> ‘ ‘ If he is a competent witness to the jury for any purpose, he is so for all purposes, and the party who originally called him and availed himself of his testimony, can not subsequently object to him on the ground of interest any more than he can impeach his general character. He is estopped from denying his competency as well as his credibility. ’ ’

The state of Colorado has a statute preventing a party from testifying, where the adverse party is deceased, unless called by the opposite party. In the case of *Warren*v. *Adams,*found in the 36th Pac., 604, the Supreme Court of that state held that if the plaintiff was examined by the defendant' on the question of his insanity, which he alleges as the cause of his delay in bringing suit, that the plaintiff might be cross-examined on his own behalf as to the transaction with defendant’s ancestor which is the controlling question in this case.

To the same effect are the following cases: *American Savings Bank*v. *Harrington’s Estate,*52 N. W., 376; *Boyd*v. *Conchohocken Worsted Mills,*24 Atlantic, 287; *Thomas*v. *Irvin,*16 S. W., 1048; *Young*v. *Montgomery,*67 N. E., 684.

In the latter case, the Supreme Court of Indiana said, in construing their statute, that:

> “While Burns’ Rev. St. 1901, § 507, provides that in suits by or against heirs or devisees neither party shall be competent witness as to any matter which occurred prior to the death of *315the ancestor, yet where a party exercises the rights given him by Section 51Q to call and examine his adversary as a witness, he thereby renders him a competent witness for all purposes. ’ ’

The language of the statute which is before the court in the other jurisdictions referred to is somewhat different from our section. The statute under consideration in these cases authorized the calling of the adverse party and his examination as other witnesses, while Section 11467 of tbe General Code provides that at the instance of the adverse party, a party may be examined as if under cross-examination — that is, the party in asking the questions in his examination need not confine his questions as he is required to do ordinarily on direct examination, but may ask them as is permitted on cross-examination; but it will be noticed that this statute in substance is not any different from the statutes in other states which have been referred to in these several opinions cited. It only gives a different latitude as to the manner of the examination, but in nowise curtails the subject-matter of the examination. The executor in this ease could not testify to transactions which occurred between him and his testate unless permitted to do so by the action of the exceptor, which evidence was competent if the exceptor chose to waive the objection to his testifying by reason of the decease of the other party to the transaction, or to make it competent by calling upon the plaintiff to testify. It would ■be manifestly unfair to permit the exceptor, trusting to the integrity of the executor, to call him and require him to testify to facts concerning the transaction with the deceased which were favorable to the exceptor, and then prevent him from testifying to the entire transaction. A party should not have a right to use the opposite party as a witness so far as his testimony might be favorable to him, and then prevent the witness testifying to matters that would be unfavorable.

We think there was no error in permitting the executor to testify in his own behalf.

Now, as to the judgment being against the weight of the evidence. We do not intend to discuss the testimony. The executor testified to his indebtedness to his mother, and to the surrender *316of the note representing that indebtedness for the reason stated by him. This is practically all of the testimony in this case as to his indebtedness to the estate or to the release of that indebtedness.

It would be manifestly unfair for the court to give credit to the testimony of this witness when he testified against his own interest, and then say that when he testified in favor of himself, his testimony was not worthy of credit.

There are no facts in the record tending to impeach his testimony when he says the note was given to him under the circumstances stated.

The judgment of the court below is affirmed.

Metcalfe, J., and Farr, J., concur.