
    No. 140
    WELSCH, Extrx. et v. HALLEN
    No. 20238.
    Supreme Court
    On motion to certify.
    Dock. Dec. 29, 1926,
    5 Abs. 27.
    First Publication of this Case
    1271. WILLS — Can the representatives of decedent’s estate be called in an action for services against the estate by a person claiming compensation, and cross examined relative to facts prior to decedent’s death?
    Attorneys — Carlisle & Merchant for the executrix; A. H. Johnson and John W. Wilson for Hallen; all of Columbus.
   William Welsch widower who had a blood son, married Marie Dupre who had a blood daughter. The daughter whose name is now Margaret Hallen lived in the household for over 15 years. Welsch died testate leaving one-half of his estate to his son and the other half to his widow who is also executrix. Hal-len being left out of the will filed her claim for services against the estate in the sum of $9540. This claim was allowed and Harry Welsch the blood son of William Welsch objected. Thereupon Hallen commenced suit to recover and on the trial, of the case Hallen called Harry Welsch and the executrix and attempted to cross-examine them about facts occurring before William Welsch died, which was objected to by opposing counsel and sustained.

At the close of Hallen’s testimony, the trial court non-suited her. On appeal the Court of Appeals reversed the lower court upon the ground that Welsch should have been cross-examined and the executor allowed to testify. _

Welsch contends in the Supreme Court:

1. That Hallen in an action, for services against the representatives of a decedent’s estate cannot call the representatives in spite of objection by the defense counsel and examine them as if under cross-examination as to facts, transactions, conversations and admissions oe-'curring in the lifetime of the decedent.

2. That the disqualified party calling for such cross-examination, may under the decisions of this court in 38 OS. 441 and 44 OS. 596 testify as to the same facts, transactions, conversations and admissions, and in such event the protection to decedent’s estates provided by 11495, will have been destroyed.  