McKay v. Riley

Mr. Chief Justice Scholfield delivered the opinion of the Court: The amendment to section 101, chapter 3, of the Revised Statutes of 1874, approved June 15, 1887, enacts that the practice in applications for decree authorizing the sale of real estate to pay debts of the intestate “shall be the same as in eases in chancery;” that the court may, in such cases, among other things, “investigate and. determine all questions of conflicting or controverted titles arising between the parties to the proceedings.” Before the enactment of our statute permitting parties in interest to testify, (Rev. Stat. 1874, chap. 51, secs. 1, 2, et seq.,) it was competent for one defendant in chancery to have his co-defendant testify on his behalf, provided that his co-defendant was not interested against the complainant, and therefore, that in testifying for the defendant calling him he was not testifying for himself. Smalley v. Ellet, 36 Ill. 500; Walker v. Dement, 42 id. 372; Bragg v. Geddes, 93 id. 39. Our statute referred to supra does not render any one incompetent to testify as a witness who was a competent witness before its enactment. (Bradshaw, Admr. v. Combs, 102 Ill. 428.) It necessarily follows, therefore, that Lawrence Riley, the father of William Riley, and John Riley and Jennie Riley, his brother and sister, were competent witnesses in his behalf, and that the court properly permitted them, though co-defendants, to testify on the issue whether the lots described in the petition belonged to the intestate at the time of her death, or to William Eiley, for their interest is clearly against William Eiley and in favor of the administrator. The court erred in permitting William Eiley himself to testify on that issue, since he falls within the exclusion in section 2 of the statute, supra. But the evidence of the other witnesses not being affected by that section, and being properly admitted, was, of itself, sufficient to sustain the decree below, and the error in admitting his testimony consequently did no harm. The objection urged in argument, that William Eiley permitted the intestate to hold herself out to the world as the owner of these lots, and on the faith of that ownership to incur the debts remaining unpaid at the time of her death, is not sustained by the evidence in this record. It is not proved that the creditors of this estate gave credit to the intestate because of their belief in her ownership of these lots, and that otherwise they would not have given such credit, and it is hence unnecessary to say more in regard to it. No question arises upon this record as between William Eiley and his co-defendants. No errors are assigned in that respect. But the court below should not have adjudged costs against the administrator and awarded execution against him personally. So far as is disclosed by the record, the administrator acted in good faith, and for what he deemed to be the best interests of the estate, and costs should therefore only. have been adjudged against him as administrator, to be paid . in due course of administration. Burnap v. Dennis, 3 Scam. 482. That part of the judgment below is reversed, but in all other respects it is affirmed. The appellant will recover his costs ‘ in this court. Judgment reversed in part and in part affirmed.