Campion v. Schinnick

Cassoday, 0. J. Mary Canty died, testate, in September, 1891, something over four years after the death of her husband. Her will was admitted to probate, and the defendant thereupon qualified as executor. The plaintiff presented to the county court, for allowance against the estate of Mary Canty, an instrument in writing, in the words and figures following, to wit: “ Appleton, Mch. 17th, ’90. “ Due James Campion one thousand dollars on demand. her “Mary X Canty.” The county court disallowed the claim September 20, 1892. Thereupon the plaintiff appealed to the circuit court; and, upon issue joined and trial had, the jury, at the close of the trial, by the direction of the court, returned a verdict in favor of the plaintiff, and assessed his damages at $1,099.49. From the judgment entered thereon accordingly, in favor of the plaintiff and against said estate, the executor brings this appeal. The execution of the alleged due bill was not proved as required at common law. 1 Greenl. Ev. §§ 557, 569, 572. The trial court admitted the due bill in evidence against the objection that it had not been so proved. This must have been on the assumption that its execution would be presumed as provided by statute in case of such controversies between living parties. R. S. sec. 4192. But that section does “not extend to instruments purporting to have been signed or executed by any person who shall have died previous to the requirement of such proof.” Ibid.; Shattuck v. Bates, 92 Wis. 633. [113] Besides, tbe trial court erroneously allowed tbe plaintiff to be examined as a witness in respect to tbe transaction and communication by bim personally with tbe deceased, Mary Canty, contrary to tbe statute. E. S. sec. 4069. That transaction consisted of an alleged delivery of a note against her husband, wbo bad been dead about three years, as a consideration for tbe alleged due bill. • By the Cowrt.— Tbe judgment of tbe circuit court is reversed, and tbe cause is remanded for a new trial.