#### Gertrude Vultee, administratrix of Frederick Vultee, deceased, plaintiff in error, *versus.*David Rayner, defendant in error.

The plaintiff in *error,*being sued, in the Marine Court, as administratrix of her husband, on a promissory note made by him, pleaded *non-assumpsit*and *plane administravit.*To support the last plea, she called her son, as a witness, and offered to prove by him, the payment of certain of the debts of the intestate by her, in the due course of administration ; and by another witness, that the estate had been overvalued.

The defendant in error, contended that the administratrix must first produce the inventory of the estate, before she could offer such evidence; and the court below, rejected the testimony as incompetent. Held that the burthen of the issue was on the plaintiff in the original suit, who should have produced a copy of the inventory from the public records, if he wished by it, to charge the adminisistratrix with assests. Held also, that although no person can be a witness to increase a fund, in which he is intrusted, yet, that the son of the administratrix was competent to answer the questions proposed to be put to him:-

Certiorari from the Marine Court. The defendant below,, was sued as administratrix of her husband, on a promissory note, for 50 dollars, made by him, in his lifetime, in favor of Garrif Gilbert; and endorsed by him to Rayner, without recourse. The defendant pleaded *non-assumpsit*and *ptene administravit.*The signature of the deceased, being proved, the defendant called witnesses to show that certain debts due from the deceased to them, had been paid by her; and her counsel inquired of one of them, (who was an appraiser of the estate,) whether the goods specified in the inventory had not been overvalued: intending to show that the estate of the husband, had all been consumed in the payment of his debts. ,The plaintiff below objected to the question, and insisted that the defendant, was bound to produce the inventory. This objection being sustained, the inquiry was excluded.

The defendant then called Henry V. Vultee, a son of the defendant and the deceased, as a witness, and proposed to show by *377him, that she had paid certain other debts of the intestate, in the due course of her administration. The plaintiff again insisted, that the inventory must be produced, and contended that the witness was not competent to answer the questions proposed to be put to him. The court having sustained the objection, and excluded the evidence, the jury returned a verdict, in favor of the plaintiff, for 67 dollars; and the court gave judgment in his favor for that amount.

A *certiorari*having been taken out by the administratrix, *W> Mulock,*in her behalf, now moved to reverse the judgment, and insisted that the testimony of H. V. Vultee, was improperly rejected. The witness was not called to affect the assets of the estate, by his evidence, or to procure or prevent a judgment, for or against it; but to show that the defendant below, had acted honestly in the discharge of her duties, as administratrix, and had employed the assets entrusted to her, in the payment of the debts of the intestate. The interest of the heir, he said, is merely contingent. A legal proprietor stands between him and the estate, and he could not by possibility be benefitted, until the plaintiff’s claim was satisfied. He was not called to impeach the debt, or show its payment, but to give evidence, which, while it would tend towards the protection of the defendant, would also tend to cut off the witness from his expectency.

II. In order to charge the defendant below, the plaintiff was bound to show that she had assets. This he could have done by producing a copy of the inventory; but not choosing to do so, the defendant herself shows, by parol, what the estate was in fact, and offers to prove how it had been disposed of. This testimony, the plaintiff could meet by other proof, but he could not compel the defendant to produce the inventory, which he should have brought into court, if he intended to charge the defendant with its amount. *[Benlly v. Bcntly,*7 *Cow. R.*701.]

*Mr. O’Connor, contra,*for the defendant in error,

observed, that the question, as to Vultee’s competency, was not to be discussed. *378The court below decided, that the *evidence*offered was incompetent, not the witness. If the matters tobe proved were improper, the witness ought not to have been sworn. The court, therefore, rightfully rejected the evidence which the witness was to furnish. *Thompson v.*Gregory, [4 *J. R.*83.]

II. *The*court were also correct, in refusing to permit the defendant below, to impeach the inventory by the appraiser. If it could be impeached, it should first have been produced. When a plaintiff, on a plea of *plene*administravit, shows assets in the hands of the personal representative; the latter, if it appear, that there was an inventory, with an appraisal, ought not to be permitted to go into proof of his administration of the assets, without first producing the inventory, which is the proper and legal evidence of the amount received by him.

Oakley J.

The defendant below, was sued as administratrix of her husband: she pleaded *non-assumpsit*and *plene administravit.*On the trial the plaintiff contended, that she was bound *to*produce the inventory, which had been made of the estate, and that she could not offer any proof under her second plea, until she had done so.

The burden of proof under this issue, was clearly on the plaintiff below. The inventory was matter of public record, and might have been produced by him, to charge the defendant with *assets;*this has been expressly adjudged. *[Bently v. Bently,*7 *Cow.*701.]

The defendant below offered Henry Vultee, as a witness. He was one of the children of the intestate, and of course, entitled to a distributive share of his personal estate. He was offered to prove the payment of debts by the defendant, in the due course of administration. He was rejected as incompetent.

It seems to be a general principle, that a person cannot be a witness, to increase or to prevent the diminution of a fund, in which he is to participate, and upon this principle I should have considered this witness as incompetent, if called upon to testify generally in the cause. [5 *J. R.*258. 1 *Mass.*239. 2 *Day.**379466.] Here, however, *it*is quite apparent, that the witness had no interest in the question, which was proposed to be put to him; for if the plea of *plene administravit*had been sustained, the plaintiff below, would have had judgment for assets *in future.*1 see, therefore, no objection in principle to the competency of the witness, to answer the questions proposed to be put to him. (4 *Cranch. R.*69. 4 *J. R.*293.]

*Judgment reversed.*

H. V. Vultee, *Att'y for the plff. in error.*C. O’Connor, *Att'y for deft. in error.*