Zackheim v. Zackheim

Mr. Justice Burke delivered the opinion of the court. These parties appear in the same order as in the trial court, and for convenience we so designate them. Plaintiff filed in the county court her petition for widow’s allowance, and from a judgment against her she appealed to the district court where the cause was tried with the same result. To review that judgment she brings error. Louis Zackheim died intestate November 8, 1921, Samuel Zackheim, defendant herein and brother of deceased, was appointed administrator. His answer alleged that deceased was a single man, that plaintiff’s correct name was Gertrude Wilson, and that her claim was false and fraudulent. That claim is based upon an alleged common law marriage the existence whereof is the sole question at issue. Plaintiff’s demand for a jury in the district court was refused. She was not called as a witness in her case in chief but was called by defendant “as an adverse witness for cross-examination under the statute.” Thereupon her attorñey claimed the right to have her “go into this whole [163] transaction.” Over objection the court limited her testimony to the cross-examination. After defendant rested plaintiff was recalled, her evidence offered in chief and, over objection, limited by the court to rebuttal. Three alleged errors only need be considered here: (1) The refusal of the court to permit plaintiff to testify to the “repute of marriage” of herself and deceased; (2) the refusal of the court to grant plaintiff a jury trial; (3) the ruling of the court confining plaintiff’s testimony to rebuttal. 1. Plaintiff was no more competent to testify as to the “repute of marriage” than to testify as to her own reputation for truth and veracity. 2. A widow’s allowance is -a part of the costs of administration. Wilson v. Wilson, 55 Colo. 70, 77, 132 Pac. 67. The allowance of costs of administration are a part of “probate proceedings.” There is no constitutional right to a jury trial in probate proceedings. Miller v. O’Brien, 75 Colo. 117, 223 Pac. 1088. There is no statute which provides for trial by jury of a qúestion of costs. Moreover, if plaintiff was the widow of deceased, there was no question of fact to be tried. Her allowance was given her by law. The existence of the marriage was the only question of fact in issue. In a similar case where, as here, “the fact of such marriage must be established as the first step,” we held that “there is no statute in this state giving a right to a jury trial in a case like this.” Stratton v. Rice, 66 Colo. 407, 181 Pac. 529. 3. Plaintiff could not voluntarily testify. Her lips were closed by our statute which provides that no party to an action may testify of his own motion where an adverse party sues or defends as administrator. Section 6556, C. L. 1921. She was called by the administrator under the provisions of the statute which permits the interrogation of an adverse party as on cross-examination. Section 6570, C. L. 1921. This removed the bar and made plaintiff a competent witness “for all purposes.” Warren v. Adams, 19 Colo. 515, 521, 36 Pac. 604. When such wit [164] nesses are,called by the adverse party “the inhibition of the statute is removed and they become competent to testify as fully as any other witness in the case.” Jerome v. Bohm, 21 Colo. 322, 327, 40 Pac. 570. He for whose protection the statute was enacted may not juggle with it. He may not claim it in part and waive it in part as suits his convenience. Otherwise this act, passed for the purpose of preventing fraud, might become the instrument of fraud. The testimony of plaintiff should not have been limited to rebuttal. For that error the judgment is reversed. Mr. Chief Justice Teller and Mr. Justice Allen concur.