Latourette v. McKeon

McGrath, C. J. Defendant is sued as the maker of the following note: “$200. Tyrone, December the 2, 1889. “ One year from date, for value received, I promise to pay to John McKeon, or bearer, $200, with interest seven per cent. “Charles McKeon.” On the back of said note is indorsed the following writing and signature: “I hereby sell and assign the within note to H. B. Latourette; guarantee the same free from all equities and offsets; that nothing has .ever been paid on note. “Fenton, Oct. 21, ’92. Mrs. D. Hogan.” Defendant and Margaret Hogan are brother and sister, and son and daughter of John McKeon, who died February 2, 1890. Margaret Hogan testified that her father during his last illness gave her the note. It is urged that the testimony of Margaret Hogan was incompetent, under 3 How. Stat. § 7545. It appears by the record that the maker of this note was informed within one week after his father’s death of the fact that his sister held and claimed to own this note. Administration had been had upon the estate of John McKeon, and the estate closed, before this suit was launched. In Hillman v. Schwenk, 68 Mich. 293, Schwenk gave his note to one Weigers. Weigers died, and Hillman, claiming title by indorsement and delivery before Weigers’ death, brought suit upon the note. The indorsement was not in the handwriting of decedent, but appended thereto was what was claimed to be his mark. At the instance of Wolff, a legatee under the Weigers will, Schwenk attacked the transfer, and it was urged that Hillman’s testimony, offered in support of the transfer, was incompetent; but this Court held that the statute was inapplicable. In Hillman v. Schwenk, 68 Mich. 297, 299, the same question was raised, and the Court say: [158] “ While it was competent for the defendants to impeach “the plaintiff’s title in the note, and to agree upon that as the sole question in the case, such agreement would not bind the executor of the estate, as he was not a party to it, and did not take upon himself the burthen of the ■defense. “The title of the testator’s personal property vests in the executor for the purposes of administering the estate; and, if the note in question in reality does belong to the •estate of John Weigers, the executor would not be bound by a judgment in this case in the plaintiff’s favor. If the executor neglects his duty in collecting or obtaining possession of the assets of his testate, the law affords to the devisees and legatees a remedy, but the law does not permit a devisee or legatee to represent the estate in the prosecution or defense of suits. “If the executor had indemnified the defendants, or had taken upon himself the defense of the suit, the statute ■excluding the plaintiff from testifying to matters which were equally within the knowledge of the deceased would have applied; but, as the legatee does not represent the ■deceased person while there is an executor, the statute ■does not apply.” The first-named case came before the Court again in 68 Mich. 301, when it appeared that the administrator of the •estate of Weigers had assumed the defense of the suit, and the Court, holding that the testimony was incompetent, reversed the judgment, refusing to grant a new trial. In Jackson v. Cole, 81 Mich. 440, suit was brought to recover the amount of a claim assigned to plaintiff by her busband in his lifetime, and it was there held that plaintiff was competent to testify as to the transfer. In Brown v. Bell, 58 Mich. 58, the question arose as to the admissibility of the testimony of the proponent of a will, who was the principal devisee, respecting an agreement between _ himself and decedent, antedating the will, in conformity with which the will was made, and the Court held the testimony competent. “The contest,” say the Court, “is not between the estate, or the representative of the estate, and the proponent. The statute [159] applies, only when the estate is in some way one of the parties, and the heirs, assigns, devisees, or legatees are the others. * * * This contest is between two persons who claim an interest in the estate, and as to the estate proper are third persons, and represent no one bnt them•selves.” See, also, Schofield v. Walker, 58 Mich. 96. Under the rule laid down in these cases, the testimony was competent. Error is assigned upon the refusal of the court to instruct the jury as follows: “If the jury find from the evidence in the ease that Mrs. Hogan obtained possession of the note without consideration, and the title of the note now rests in the estate of John McKeon, then plaintiff cannot recover.” The first part of the request was calculated to mislead “the jury. The fact that the donee of the note was a ■daughter, and the circumstances under which the note was .given, supported the transfer, and it was unnecessary to ■show a further consideration. The request was therefore properly refused. The judgment is therefore affirmed. Grant, Montgomery, and Hooker, JJ., concurred. Long, J., did not sit.