Hill v. Pritchett

Beck, Presiding Justice. Joseph W. Hill filed his petition against Katie M. Pritchett and Ella M. Hutcheson as executrices of the will of Sara C. Hill, his deceased wife. He sought to establish a resulting trust for his benefit in her estate in certain real estate described. He prayed that the defendants be enjoined from interfering with his possession of this real estate. The court refused an injunction, and the plaintiff excepted. Error is assigned on the ruling of the court excluding from the evidence an affidavit of the plaintiff, offered in his own behalf. Among other statements in this affidavit is the following: “Deponent says that he was the lawful owner of such note and loan deed, and was recognized as such by his wife, who understood that she was holding the legal title to the note and the deed only for the use, benefit, and convenience of deponent.” Such a statement as this is necessarily referable to communications or transactions [500] between the deponent and his deceased wife, whose personal representatives are the defendants in this suit. That being true, the plaintiff was not competent to testify to the same. Code of 1933, § 38-1603 (1). Upon the controlling issues in the case the evidence was conflicting, and the court did not err in refusing an injunction. ■Judgment affirmed. All the Justices concur.