
    Shultz v. Boehme, Executor.
    In an action of debt, by an executor, on a bond, accompanying a mortgage, the pleadings alleged that the bond was unlawlhlly in the possession of the obligor. The defendant, in an affidavit of defense, averred that the bond had never been delivered. The plea was nil debit. The plaintiff gave the mortgage, reciting the bond in evidence, and facts from which the delivery of the bond might be inferred. The defendant then gave the bond in evidence and was asked the following question : “ State whether or not this bond came into your hands since the death of the decedent ?” Held to be incompetent, because it was designed to draw out the fact, by a negative answer, that the bond was in the obligor’s possession before the death of the deeedent; and therefore, it seems, not within the terms of the Act of April 9,1870, P. L. 44.
    Oct. 24, 1888.
    Error, No. 50, Oct. T. 1888, to O. P. No. 2, Allegheny Co., to review a judgment in favor of the plaintiff on a bond and mortgage in an action of debt, at Oct T. 1886, No. 449.
    This action was brought in October, 1886, by Hugo E. Boehme, executor of Agatha Benz, deceased, against Philip Schultz, on a bond accompanying a mortgage for $1,500. The affidavit of claim alleged that the bond was unlawfully in the possession of the defendant. The affidavit of defense averred that the defendant was never indebted on such bond as the bond recited was never delivered. The plea was nil debit.
    ' On the trial before Ewing, P. J., the plaintiff offered evidence to prove that Mrs. Benz gave a mortgage, executed by defendant, to one Hoffman, who took it to the recorder’s office, and that, on delivering it for record, a paper was discovered with it, which was returned to him by the recorder, who said he did not want. that. Hoffman then returned this paper, with the receipt for the mortgage, to Mrs. Benz. After the death of Mrs, Benz, the executor made search for the bond but could not find it. He then called on the defendant, with whom Mrs. Benz had lived, and asked him about it. The defendant said : “ That was a matter further along.” The mortgage, dated May 31, 1880, payable six years after date, and reciting the bond sued on, was then offered in evidence and the plaintiff rested.
    The defendant gave the bond in evidence, and his counsel asked him the following question:
    “ Q. State whether or not this bond (paper shown) came into your hands since the death of the decedent ?
    “ Objected to on the ground that the question necessarily involves an inquiry into matters antecedent to the death, to which the witness is incompetent to testify, and as equivalent to asking what occurred before the death.”
    By the court: “ The question is undoubtedly a very close one, but it is equivalent to asking the defendant as to what occurred before the death of the decedent. If he had the bond in his possession before the death of the decedent, the spirit of the law would forbid the admission of the testimony. Objection sustained and bill sealed for defendant.”
    Verdict and judgment for plaintiff for $1,628.25.
    
      
      The assignment of error was the refusal of defendant’s question as above, quoting the bill of exception.
    
      A. C. Hoyer, with him Montooth Bros., for plaintiff in error.
    In a suit by an executor, a defendant is not incompetent to testify to any fact occurring or existing after the death of the decedent by reason that said testimony may inferentially tend to prove the same fact existed prior to his death. Bothrock v. Gallaher, 91 Pa. 108; Stephens v. Ootterell, 99 Pa. 18S.
    
      A. H. Moeser, with him J. S. Ferguson, for defendant in error.
    Where it appears that the testimony necessarily relates to that which existed or took place in the decedent’s lifetime, the party will not be permitted to testify. Adams v. Edwards, 115 Pa. 211; Foster v. Collner, 107 Pa. 305.
    If the defendant swore that the bond did not come into his possession after the death of Mrs. Benz, he swore to a fact existing before her death, to wit, the possession by him of the bond during her lifetime.
    In Rothrock v. Gallaher the testimony was to prove the physical condition of a package during the period following the death of the owner. In Stevens v. Ootterell the interested witness was permitted to prove distinct facts and occurrences after the death of the decedent.
    In the present case the question was, to all intents and purposes, did you get 'this bond into your possession before or after the death of Mrs. Boehm ? And yet this question would be admittedly incompetent. If he had answered that he did get the bond after the death of the obligee, it was conclusive evidence against him; if he had answered that he did not, it was testifying to a matter occurring before the death.
    The contention of the defendant by his pleading was that the bond was not executed by delivery. The assertion of the defendant, by delivery of the mortgage was that the bond was also delivered— the testimony all pointed to a delivery — the defendant- did not' pretend payment. Even had he testified that he did not obtain possession of the bond in the lifetime of the decedent, the verdict, under the testimony, should have been against him.
    Nov. 5, 1888.
   Per Curiam,

The question of evidence, which we have before us in this case, was properly determined in the court below. The question was ingeniously put, but it was clearly designed to draw out the fact, by a negative answer, that the bond had come into the defendant’s possession before the death of Agatha Bentz. Such being the case, the question was not allowable.

The judgment is affirmed.  