
    [No. 5437.]
    ALBINA A. SEDGWICK, Executrix of the Estate of THOMAS SEDGWICK, Jr., Deceased, v. THOMAS SEDGWICK, Sr.
    Witnesses in Action in Favob of an Estate.—The section of the Code of Civil Procedure which prohibits parties in whose favor an action is prosecuted against an estate from being witnesses, does not prohibit a person against whom an action is prosecuted by an executor on a claim in favor of an estate from being a witness in their own favor.
    Appeal from the District Court, Fifth Judicial District, County of San Joaquin.
    The plaintiff was the executrix of the estate of Thomas Sedgwick, Jr., who died in February, 1874. This was an action on two promissory notes given by the defendant to the plaintiff during his lifetime. The defendant offered himself as a witness in his own behalf, in reference to one of the notes. The Court received his testimony subject to an objection interposed by the plaintiff, but on final argument struck it out. The defendant excepted. The plaintiff had judgment, and the defendant appealed from the judgment and from an order denying a new trial.
    
      W. L. Hopkins and J. H Budd, for the Appellant.
   By the amendment to the Code of Civil Procedure, made in 1874, the Legislature precluded parties to an action from testifying therein when the action is against an executor or an administrator of a deceased person upon a claim or demand against the estate of such deceased.

The present action on the note is by the executrix, and not against her, and is on a demand in favor of the estate of her testate, and not against said estate.

D. S. Terry and W. L. Dudley, for the Respondent, cited Blood v. Fairbanks, 50 Cal. 420, and Mitchell v. Hagenmeyer, 51 Cal. 108.

By the Coubt :

The third subdivision of section 1880, Code Civil Procedure, as amended in 1874, provides that the following persons cannot be witnesses: “ Parties to an action or proceeding, or in whose behalf an action or proceeding is prosecuted, against an executor or administrator, upon a claim or a demand against the estate of the deceased.” This action is brought by the executrix, and is brought, upon a demand, not against, but in favor of the estate, and therefore does not fall within the above cited provision. The Court erred in excluding the testimony of the defendant.

Judgment and order reversed, and cause remanded for a new trial.  