WITNESSES.

[Hamilton Circuit Court,

November Term, 1888.]

Smith, Swing and Cox, JJ.

#### *THOMAS WILLIAMS v. A. A. LONGLEY, ADM’R OF SEWELL.

l. Incompetency Where Adverse Party is an Administrator.

In ait action brought to recover a money judgment against the administrator of an estate, the widow of the intestate, or his heirs-at-law, are not necessary or proper parties thereto. And if on the application of the widow she is made a party defendant, and files an answer, setting up defenses to a judgment against the estate, and on behalf of fhé administrator testifies to transactions occurring before the death of the intestate, she is not a party to the action in such sense as would entitle the plaintiff to testify to the same transaction, under the third clause of sec. 5142, Rev. Stat.

I. If Witness is an Interested Party and Testifies, Plaintiff may to Same Transactions.

To entitle a plaintiff in such case to testify to facts which occurred before the death of such intestate, it must first appear to the court that he comes within some one of the exceptions to the general rule established by said section. And in this case it should have appeared, before the plaintiff was allowed to testify in regard to transactions occurring before the death of the defendants intestate, that his widow had a direct interest in the ’ controversy. And this did sufficiently appear. The widow being by law en- ' titled to a share of the personal estate of her husband, after the payment of his debts, •in'the absence of evidence showing the insolvency of the estate, the law will presume , that it is solvent, and that she thus has a direct interest therein, and in the action.

Error to the Court of Common Pleas of Hamilton county.

*

 This case was dismissed by the supreme court for want of preparation, November 21, 1893.

Smith, C. J.

The. original action was one brought by Williams against the defendant as *293administrator of the estate of John W. Sewell, deceased, to recover about $1,600, alleged to have been paid by Williams to Sewell, in his life-time, by mistake, on a settlement had between them. The answer of the administrator denied that there was any such mistake in the payment made, and set up other defenses, .as the statute of limitations and the adjudication of Sewell as a bankrupt, arid issues on these were raised by the reply of the plaintiff.

Before the trial of the case, the widow and heirs-at-law of Sewell, on their own application, were made parties defendant to the action, and filed answers therein. Harriet M. Sewell, his widow, alleged that no judgment should be r.e-covered against the administrator of the estate, for the reason that the.settlement, in which it was claimed the mistake occurred, was of dealings between herself, and Williams, the plaintiff, through her agent, J. W. Sewell. She .also pleaded the statute of limitations as a bar to a judgment against the estate. Her answer was controverted by the plaintiff’s reply, but no claim was asserted by him against Mrs. Sewell.

At the trial, the plaintiff having- offered evidence tending to establish liis claim, the administrator, among other testimony, introduced in evidence .the deposition of Mrs. Sewell, in which she testified fully to what she claimed to have been the transaction between the plaintiff, Sewell and herself. That the money which had been loaned to Carlisle was her own — that Williams had furnished no part of it. That he acted simply as her agent in making and collecting the loan, and that when he collected it, it all belonged to her, and that Williams only paid it as he was bound to do, to her, she acting by her husband and agent —and that no more was so paid than ought to have been.

Thereupon, in rebuttal, the plaintiff was examined as a witness in his own behalf, and the only question which is presented for our consideration is, whether the trial court erred in allowing him to testify as he did, against the objection of the defendant, the administrator. It is claimed, however, by the -counsel for the defendant in error, that no sufficient or valid exception was taken to the evidence of Williams, and therefore, that the question argued, is not fairly presented by the record.

Williams, in the ,first instance testified without objection, to some facts., occurring after the death of Sewell. He was then inquired of by his attorney whether he ever had any business transactions with Mrs. Sewell. Objection was then made by the counsel for the administrator that Williams was amincompetent witness. The court overruled the objection, and an exception was duly-entered. We think the court did not err in this action. Independently of tíre principle hereinafter discussed, -the question did not necessarily call for evidence as to any transaction before the death of Sewell. If, in answer to such question, Williams had undertaken to testify to- any fact occurring before the death of Sewell, that was the time to interpose arid prevent the answer from being given, or, if given, to move to rule it out. This course was not adopted, and there was no objection taken to the answer as made.

Afterwards the plaintiff was asked by his attorney in regard to the transaction which was the subject of the action, and which had occurred prior to Sewell’s death. This was objected to by the administrator, but the objection was overruled by the court, and exceptions duly taken to such ruling. And in answ.er to the question, the plaintiff testified fully to the transaction in question, and in relation to which Mrs. Sewell had given her evidence. This, we think, fairly raises the question whether Williams, the plaintiff, in an action in which an administrator was the adverse party, should have been allowed to testify to facts which occurred prior to the death of the intestate. ,

Section 5242, Rev. Stat., provides, “that a party shall not testify where the adverse party is * * * the administrator of a deceased person except”.as provided in the eight following subdivisions of the section. As Mrs. Sewell did not testify to any conversation with, or admissions of Williams, it must "be *294-•conceded that the only one of these clauses which .relates to the question m ■controversy is number three, which reads as follows: “If a party, or one having a- direct interest, testify to transactions or conversations with another party, the -'latter ■ may testify to the same transactions or conversations.” If, therefore, "Mrs. .‘Sewell was a party to this suit, within the meaning of this section, or if-she had a direct interest (evidently in its result) clearly, there was no error in allowing-the plaintiff to testify to the same transaction, as to which she gave her ¡evidence. ' ;

We are of the opinion that she was not a party to the suit within the mean•ing-óf the section. It is true that on her own application she had been made : a. .party defendant, but upon what principle or provision of law we are not ad- : vised. . -We think it was not good practice to do so, and if a motion had been filed by either of the proper parties to the action to dismiss her therefrom, h wotild have been the duty of the court to grant it. No relief whatever was sought against her. The administrator represented the estate of her husband, and the ■widow and heirs had no right to intervene in the case. Under this section, it has "been -held, that the parties intended to be excluded from testifying thereby, are''the real, and not the mere formal, nominal and unnecessary parties, Wolf v. Powner, 30 O. S., 472, 476. And 'as such mere formal or unnecessary parties ate not to be excluded from testifying, so a plaintiff who makes such persons ' parties,-or allows them to remain as such, can not if they are called as witnesses, oavaü:*himself of this provision to testify to the same transaction, on the mere ground that they are parties to the record.

Was'Mrs. Sewell a person having a direct interest? No testimony was offered by either side, as to the amount of the personal estate of Sewell, or of “Pis debts, or the costs and expenses of administration, and consequently.whether There.-would be any balance for distribution to his widow and children. It does ^appear that administration was granted on his estate, both in Indians! and Ohio. •■If-there be any of his personal estate remaining after payment of .the debts and '•'expenses,-according to-our statute the widow is-entitled to a share of -it, and tifus would have a direct interest in the event of the suit — for if the plaintiff is-successful, it will reduce the amount she will receive therefrom,-and the judg-'fíléiítdiere rendered may prevent her from receiving anything at all from the ;personál estate.

'What i then is her status on the evidence which was before the court? As 'The statute makes a party to the suit incompetent to testify therein, when the -adverse .party is the administrator of the estate of a deceased-person, except as ■speciálly provided for in the section, we are df the-opinion that in such case, before such party can properly testify, he must make -it appear that he comes " Within some one óf the exceptions, and such was the duty resting upon the ..pfainfiff in this instance,- — that is, to show do the court' that Mrs. Sewell was a person having a direct interest, and then that he might testify to any transaction about which she testified at the instance of the administrator.

’ 'But we are further of the opinion, that this was sufficiently and satisfactorily done In this case. It is not required that it be conclusively done, or beyond a • reasonable doubt. If a *primó facie*case is made, and there is nothing to rebut •'if) this1 is sufficient. It is hardly to be expected that on a preliminary question ■'Ííké'this, a court is to go into a full examination of the financial condition of the ■estate, and determine whether certain assets can be collected, or certain claims 'against the estate enforced. And unless'the reviewing court is satisfied that ’the trial court found incorrectly on the point, the judgment will not be reversed on this ground.

v We-'think under the decision of the supreme court, in Fagin v. Cooley's Adm'r, 17 O., 44, the court of common pleas was warranted in finding that the ■ -Widow had a direct interest in the result of the suit. That case was one relating ■ to,’the'heirs of an intestate, but we think the same principle would apply to the *295case of a widow. The court in deciding the case, say: “But it is urged by counsel for defendant in error, that the interest of the witness in this case is not such as to exclude him, because, for aught that appears, the estate of the father may be insolvent, and it is urged that it was the duty of the objector .to show that it was not insolvent. We think otherwise. Upon the death of the father his heirs acquire a direct interest in the estate. It is the same interest which he had in his life-time, although their claims must be- postponed to those of creditors.. In the prosecution of a suit either in favor of, or against the personal representatives, if any of the heirs are' offered as witnesses, the law will .presume them to be interested until the contrary appears.”

Black & Rockhold, attorneys for plaintiff in error.

Kittredge & Wilby, attorneys for defendant in error.

It is urged further that the court erred in the charge given to the jury, but as no exception.was taken to it at the time, we do not pass upon it.

The judgment will therefore.be affirmed with costs, but without penalty.