Gordon v. McEachin

Campbell, J., delivered the opinion of the court. The creditors of the testator in his lifetime, whose demands had been paid by the executor without their having been probated, allowed and registered, as provided for by law, were competent witnesses for the executor to testify to the propriety of his disbursement in paying such demands. They are not excluded by § 758 of the Code, or by the amendment of that section by the Act of 1878 (Acts 1878, p. 190). Their ex parte affidavits would have secured the precedent allowance of their claims, which would have justified their voluntary payment by the executor ; and, a fortiori, should the testimony of the creditors as witnesses, subjected to cross-examination by the [836] legatees, be held to be admissible as to the propriety of the payment of their claims by the executor. To exclude a witness, under the statutes cited, he must be seeking to establish his own claim against the estate of a deceased person, or one he has assigned since the death of the decedent, in a suit between himself and another, in which the estate of the decedent or some part of it is involved. Love v. Stone, 56 Miss. 449. The object of the amendment of 1878 referred to was to prevent the evil of a transfer of a claim, after the death of the decedent, and, in a suit by the transferee, the proving it by the original claimant, who had assigned for the purpose of being made thereby a competent witness, as it was shown by the decision in Rothschild v. Hatch, 54 Miss. 554, might be done. So much of the testimony of the executor as related to his claim against the estate of the testator existing in the lifetime of the decedent was incompetent and should have been excluded. It is impossible to determine what influence this testimony had on the Chancellor, and, for the error in admitting it, the decree will be Reversed.