
    Case 12 — EQUITY
    October 23, 1880.
    Hobbs’ ex’r v. Russell’s ex’r.
    APPEAL FROM NELSON CIRCUIT COURT.
    1. An executor, or representative of a testator or intestate, cannot, when: sued in his representative capacity, testify in regard to matters, occurring between himself and the decedent whose representative is prosecuting the action against him.
    2. That the executor was also sued in his individual capacity in the: same suit does not affect the question.
    MUIR & WICKLIFFE for appellant.
    1. The court erred in admitting the testimony of Samuel Russell, executor of Henry Russell, as to matters occurring between appellant’s, testator and himself.
    2. The Civil Code, subsec. 2, sec. 606, excludes such evidence.
    3. It is upon this testimony alone that the circuit court released appellee’s testator from responsibility.
    JOHN A. FULTON for appellee.
    1. The admissibility of the testimony of Samuel Russell, who is executor of his father, Henry Russell, should be governed by the same rules that it would have been in an issue of this kind between all the parties living before the enactment of the “Testimony Bill.” Samuel Russell obtained no relief whatever by his deposition. His. plea was sustained by others.
    2. The contract for indulgence released appellee’s testator. (1 B. Mon., 322;' 7 Bush, 582; 6 16., 20; 4 16., 486; 2 Parsons on Contracts, 18; 4 Mon., 491; 7 Mon., 540; 5 J6., 574; 2 Bush, 181; Civil Code, sec. 606, subsec. 4, subsec. 2; 14 B. Mon., 321; 2 Met., 579;. 4 J. J. M.,. 440 ; 8 Bush, 161.)
   CHIEF JUSTICE PRYOR

delivered the opinion of the court.

If the defense relied on by the heirs and one of the executors of Henry Russell has been sustained by the proof, there can be no reason for disturbing the judgment, unless Samuel Russell, one of the executors, was incompetent as a witness. His testimony defeats the recovery against the heirs and executors, as the contract for indulgence is established by him. This witness is not only the principal •obligor in the note, but he is one of the executors of the will, and also a devisee; and while he admits the execution ■of the note and his individual liability, his testimony prevents any judgment against him as executor, and in this ■view he is testifying for himself.

The question, it seems to us, is: Can one who has no •other interest than as the executor or representative of a ‘testator or intestate testify, when sued in his representative capacity, as to matters occurring between himself and the decedent, whose representative is prosecuting the action ?

In this case an executor of one testator is suing an executor of another testator, and the executor against whom the •action is brought is also the principal in the note, and a •devisee of the testator whom he represents. He admits his liability, but having a co-executor, the latter pleads the discharge of the testator, who was surety only in the note by reason of a contract for indulgence, and introduces the executor who was thé principal in the note; and made no defense to prove the contract. Subsection 2, of section 606, .Civil ■Code, makes him incompetent. He is testifying for himself, ■when, as executor, he proposes to establish his defense by his own testimony; and the fact that he has not pleaded can make no difference, as the defense by his co-executor prevents •any judgment against him in his representative capacity.

The Code makes no exception as to a fiduciary against whom a recovery is sought. This, witness is not only a party to the record, but is seeking to prevent a judgment against himself in a representative capacity by establishing upon his own statement a contract between himself and the ■decedent that must defeat the recovery. Prior to the change ■of the rule as to the competency of witnesses, the executor, when sued as such, would have been incompetent as -a witness to prove such an agreement, and when offered as a witness in this case should have been rejected.

Judgment reversed, and cause remanded for further pro■ceedings. (Lampton v. Lampton, 6 Monroe.)  