
    Farley et al., Executors v. Lisey, Executrix.
    
      Testimony — Incompetency of — By one executor against another— Sec. 524®, -Rev. Stat.
    
    1. In an action by one executor or administrator against another, the parties are adverse within the purview of section 5242, of the Revised Statutes, and neither is competent to testify against the other to any matter not within one of the exceptions contained in that section.
    2. When such party is called to give testimony not permitted by either of the exceptions, an objection by the adverse party to the proposed testimony on the ground that it is incompetent, is sufficient; it is not necessary to object to the witness as incompetent.
    (Decided January 26, 1897.)
    Error to the Circuit Court of Cuyahoga county.
    Suit was brought in the court of common pleas of Cuyahoga county, by Farley, as executor of the estate of Mary A. Montpelier, against Isaac Lisey, to recover rent alleged to be due under a lease made by the plaintiff’s testator to the defendant, of premises in the city of Cleveland. The petition sets up the lease, and alleges that a certain modification of it, by which the rent was reduced, and an additional covenant entered into by the lessor, was without consideration; and seeks to recover according to the original lease. That allegation was denied by answer, and a breach of the additional covenant averred by reason of which the lessee was discharged from the payment of the rent sought to be recovered. Before the trial, the lessee died, and the executrix of his estate was made the party defendant, and the suit thereafter prosecuted against her. At the trial, the plaintiff was called as a witness in his own behalf to testify to conversations which it was claimed had occurred between him and the lessee, and between the parties to the lease in his presence, touching the consideration for the modification of the lease; and for the purpose of showing it was without consideration. The proposed testimony was objected to by the defendant, as incompetent, and the objection was sustained. Judgment having been rendered for the defendant, which was affirmed by the circuit court, the plaintiff prosecutes error here, assigning the exclusion of the testimony referred to as a ground of reversal, with others.
    
      II. O. Bunts and Boynton <& I-Iorr, for plaintiffs in error.
    In the case at bar the adverse party is an executor, but is J. H. Farley, executor, such a party as the inhibition of this section was intended to reach?
    Manifestly, the intent and purpose of this provision was, to prevent the living adversary from taking advantage of the death of his opponént when their differences should become the subject of litigation.
    Can it be faiily contended that Mr. Farley, in this case, is such a part j as this provision had in mind? He was not a party to the transaeton out of which this litigation arose. He never had an interest adverse to the defendant’s testator. This contention is not one between Mr. Farley and the defendant. It is a contest between the estates of two late adversaries, both of whom are dead. The beneficiaries under the will, or creditors of the estate, are the real parties in interest, yet they are competent witnesses — while one who occupies the position of a “figured-head” to the action — a nominal party in fact — is to be held incompetent.
    Is not the absurdity of this claim apparent when we reflect that by the mere act of resigning his trust this witness establishes his competency?
    If this be the law, then this estate in order to gain the advantage of the testimony of this witness must first be dep lived of his services as executor, which, presumably, he is peculiarly qualified to discharge. Abbott on Trial Evidence, 61; Bank v. Hunt, 25 Mo. App., 170; Theiman v. Meier, 25 Mo. App., 306; Powers v. Sheeler, 55 N. W., 817; Chase v. Chase, recently decided (1894) in the Supreme Court of New Hampshire.
    The same ruling upon similar statutes was made in the following cases, viz.: Weltsie v. Weltsie, Exr., 1 N. Y. S., 559; Hoyt v. Davis, 30 Mo., App., 309; Davis v. Gallagher, 9 N. Y. Sup., 11; Miller v. Miller, 1 Pa. Dist., 95; Haines v. Watts, 26 Atl. Rep., 572; Bowers v. Schuler, 55 N. W. Rep., 817; Bowie v. Bowie, 26 Atl. Rep., 405; Kenyon v. Peirce, 17 R. I., 794.
    We believe that a fair consideration of the Ohio decisions on this subject will disclose that so far as they involve this question, their reasoning sustains our position. Stevens et al v. Hartley, 13 Ohio St., 531; Baker Admr. v. Kellogg, 29 Ohio St., 664; Wolf v. Powner, 30 Ohio St., 476; Rankin v. Hannan, 38 Ohio St., 441; Roberts v. Briscoe, 44 Ohio St., 600; 17 Ohio St., 640; 21 Ohio St., 658; 18 Ohio St., 73; 22 Ohio St., 221.
    
      George B. Solders and Thomas H Hogsett, for defendant in error.
    Was there error excluding Parley under section 5242?
    
      It is contended Parley was not a party to the transaction out of which the litigation arose. He (individually) never had an interest adverse to the lessee, deceased. The contention is not between Parley, individually, and the defendant in error.
    Granted — the answer to this claim is: Parley represents in this litig’ation, and seeks to enforce the rights of the lessor, deceased, and not his individual rights ; and if Parley resigns as executor, he is competent. Yes, but why? Because he no longer represents or stands in the shoes of lessor, deceased (9 Ohio St., 561); has no interest either by way of commissions as executor, upon moneys accounted for, or otherwise, which would bias, prejudice or swerve him, consciously or unconsciously, and he would not be the adversary party. 9 Ohio St., 558; 11 Ohio St., 625; 42 Ohio St., 308; 13 Ohio St., 264; Staphens v. Hartley, 13 Ohio St., 531; Bell, Admr. v. Wilson, 17 Ohio St., 640; Baker, Admr. v. Kelley, 29 Ohio St., 663; Thompson v. Thompson, 18 Ohio St., 73; Doughman, Admr. v. Doughman, 21 Ohio St., 658; 22 Ohio St., 221; Wolf v. Powner, 30 Ohio St., 472 ; 38 Ohio St., 438; 41 Ohio St., 368; 42 Ohio St., 211; Roberts v. Briscoe, 44 Ohio St., 600.
    Said Ohio cases support the following conclusions.
    
      a. Section 5242, proceeds upon the principle of mutuality of rights.
    v b. That where the adverse party is an executor or administrator, the opposite party (who must be the real, and not merely formal or unnecessary party), cannot testify.
    
      c. That both the party disqualified (Parley), and the adverse party must be ■ parties to the record, and adversely interested in the determination of the issues of fact.
   By The Court.

At the trial, tne defendant as executrix, was a party to the action adverse to the plaintiff, within the purview of section 5242, of the Revised Statutes, and the testimony excluded does not come within either of the exceptions contained in that section. True, the plaintiff was prosecuting the action in his representative character as executor of the lessor; but the issues in the action were joined between him, as such, and the defendant; and he was interested in maintaining the issues in his behalf, not only in his representative capacity, but individually also to the extent, at least, that his compensation was affected by the amount recovered in the action. The statute has reference to the adverse character which the parties sustain toward each other as parties in the action at the time of the trial, and not necessarily to their relation as parties to the transaction which is the subject of the action or defense; and unless these parties were adverse, there were none in the action, for they were the only parties. It is said the plaintiff might have resigned as executor, and then he would have been competent to testify as desired; but then he would no longer be a party to the action, and therefore not within the inhibition of the statute. But being a party to the action when his testimony was offered, it was properly excluded. The objection to the testimony he was called on to give, on the ground that it was incompetent, was sufficient; it was not necessary to make an objection to the competency of the'witness. He was not incompetent to testify to any matter falling within any one of the exceptions in the statute, and there might be room for contention thab a general objection to the witness was too broad. The testimony which was sought to be elicited from the witness was incompetent, and an objection to it on that ground properly called for its exclusion.

Other questions arising upon the record were argued, and have been considered. But, as to them, we deem it necessary to say only that we find no prejudicial error.

Judgment, affirmed.  