Dowland v. Staley

Mr. Justice Graves delivered the opinion of the court. 11. Witnesses, § 145*—when party incompetent to testify as to transactions with deceased person. Where the parties complainant to an action for an accounting, which was referred to a master during the life of the defendant, testified as to transactions with defendant, but, upon his dying before the hearing was completed and report made by the master, the personal representatives of the latter were substituted, held that such testimony was rendered incompetent and should have been excluded and that it was immaterial that the deceased testified in contradiction to parts of such testimony. 12. Account, § 35*—what degree of proof required. The complainants to a bill for an accounting must make out their case by a preponderance of competent evidence. 13. Appeal and error, § 1301*—when presumed trial court did not consider incompetent evidence. It must be presumed on appeal that a trial court, in an equitable action, did not consider incompetent evidence in making its findings. 14. Appeal and error, § 452*—when objection may not be raised on appeal. An objection that a letter introduced in evidence was not identified may not he raised for the first time on appeal. 15. Witnesses—when disqualified as party in interest to testify against representatives of estate of deceased person. A trustee, defendant to an action of accounting brought by the administrators of the estate of a cestui que trust, is a party in interest, and is disqualified to testify as to transactions with the deceased. 16. Evidence, § 461*—when insufficient to overcome statements against interest. The testimony of a party in interest given years after a transaction is closed is insufficient to overcome evidence consisting of a letter written at the time of the transaction and which contained statements against his interest. 17. Trusts, § 270*—when evidence sufficient to sustain finding of court charging trustee with proceeds of sale of land. On a bill for an accounting by the administrators with the will annexed of the estate of a cestui que trust against the executors of the will of the trustee for an accounting of the trust estate, evidence held sufficient to sustain a finding of the court charging defendants with the entire amount of money received by the trustee from the sale of lands of the cestui que trust. 18. Appeal and error, § 1399*—when finding of master not disturbed as unsupported by evidence. Where the finding of a chancellor on a question of fact follows the finding of the master, the Appellate Court will not reverse the decree on the ground that it is not supported by the evidence unless it is clearly contrary to the manifest weight of the evidence. 19. Trusts, § 270*—when evidence sufficient to sustain finding of court charging defendants with interest upon funds of trust estate. On a bill for an accounting by the administrators with the will annexed of the estate of a cestui que trust against the executors of the will of the trustee for an accounting of the trust estate, evidence held sufficient to sustain a finding of the court charging defendants with interest upon funds of the cestui que trust invested by the trustee. 20. Evidence, § 164*—when paper admissible as statement against interest. On a bill for an accounting by the administrators with the will annexed of the estate of a cestui que trust against the executors of the will of the trustee for an accounting, of the trust estate, held that a statement of account made by the trustee- to the cestui que trust which did not include two items which the trustee claimed to have paid, and which covered the period during which they were claimed to have been paid, was admissible as an admission against interest and as tending to show that the items had not been paid. 21. Trusts, § 270*—when evidence sufficient to show that claims for credit and receipts for payment spurious. On a bill by the administrators with the will annexed of the estate of a cestui que trust against the executors of the will of the trustee for an accounting of the trust estate, evidence held sufficient to sustain a finding of the court that two claims for which the defendants claimed credit and receipts given therefor were spurious. 22. Trusts, § 230*—when trustee not liable for interest on funds. A trustee cannot be required to account for any interest on a trust fund except such as he receives therefrom, even when he mingles the trust fund with his own, provided he always has at his command funds with which to respond to all legal demands. 23. Payment, § 29*—when evidence insufficient to show. On a bill by the administrator with the will annexed of the estate of a cestui que trust against the executors of the will of the trustee for an accounting of the trust estate, evidence consisting of a draft on the bank which the trustee owned, signed hy the cashier and indorsed hy the cestui que trust, held insufficient to establish a payment on a claim due the cestui que trust, where there was no evidence tending to connect the trustee or the funds in, his possession with the draft, or to show from what source it was received. 24. Evidence, § 165*—when letter incompetent as self-serving. On a bill by the administrators with the will annexed of the estate of a cestui que trust against the executors of the will of the trustee for an accounting of the trust estate, held that a letter written by the trustee to a son of the cestui que trust stating that he inclosed a draft for a certain amount as the mother directed and that he and another person had settled for the land, held incompetent as self-serving. 25. Trusts, § 270*—when evidence sufficient to sustain findings. On a bill for an accounting of a trust estate, held sufficient to sustain findings allowing certain claims of credit and disallowing another. 26. Witnesses, § 95*—when party disqualified to testify against representative of deceased person. A trustee who is defendant to an action by the representatives of the estate of the deceased cestui que trust for an accounting is incompetent to testify in his own behalf against such representatives except in so far as the exceptions in Hurd’s Rev. St., ch. 51, sec. 2 (J. & A. ¶ 5519) apply. 27. Appeal and error, § 1467*—when admission of evidence harmless error. The erroneous admission of the evidence of a disqualified witness in a trial before a court is harmless error when there was nothing in it that was considered by the trial court to the detriment of the adverse party.