
    No. 149
    CROWE v. VICKERY, Admr. d. b. n.
    Ohio Appeals 8th Dist., Cuyahoga Co.
    No. 7581.
    Decided Jan. 6, 1927
    1162. TESTIMONY — Sec. 11495 GC., which provides that testimony of facts happening before decedent’s death are inadmissible may be waived by the personal representative and when they are so waived the trial court must enter judgment upon such testimony.
    Judges Mauek, Sayre and Middleton, 4th Dist., sitting.
    First Publication of this Opinion
    Attorneys — Leroy C. Lancer for Crowe; Vickery & Vickery for Estate; all of Cleveland.
   SAYRE, J.

Thomas Crowe brought his suit in the Cleveland Municipal Court against Jesse Vick-ery administrator d. b. n. to recover for services rendered as manager of a grocery store for Catherine Meyers, deceased. A claim had been presented to -the administrator which had been disallowed. Crowe’s deposition has been taken in New York and was read at the trial, stating what servicgs_he had rendered, his salary for such services, etc. Judgment was rendered for Vickery and error is prosecuted to the Court of Appeals which held:

1. The evidence offered by deposition was clearly inadmissible in view of 11495 GC., which declares a party shall not testify when the adverse party is an administrator except to facts which occurred after the time the decedent died.

2. If the trial court rendered judgment against Crowe because he refused or had a right to refuse the testimony, the judgment is correct-; hut if he considered the testimony which was undisputed, his judgment is erroneous.

3. The question then is, if the defendant is an administrator, and the opposite party testifies to facts which occurred prior to decedent’s death and there is no objection to it on the part of the administrator, should it be treated the same as evidence of a competent witness or should it be disregarded?

4. That it is not the design of the statute to place an absolute and insuperable barrier to a. party testifying- as to facts occurring before decedent’s death, when the adverse party is executor or administrator; and that the exclusion of the evidence is a privilege which the executor or administrator may waive derives force from an examination of the third exception to 11495 GC. 44 OS. 602.

5. So while the statute is for the protection of estates of deceased persons it may he waived and if such waiver often results in preventing injustice, the courts may well leave it to the personal representative to decido whether or not he will claim such protection. If no objection is made to the testimony i: must be treated as other competent testimony.

6. The trial court should have consider 1 the evidence of Crowe contained in the deposition, and since he must have refused to do so, the judgment is erroneous and will be reversed.

Judgment reversed.  