
    Alexander Johnston, Executor of John Johnston, Deceased, v. J. H. Hawkins & Co.
    In an action against an executor to recover for goods sold to the testator, the defense was that the testator’s wife owned a stock of goods and carried on business on her own account, and that the goods-in controversy were sold to her on her sole credit—Held: That it was not competent for the executor, as against the plaintiff, to prove that the widow took what was left of the stock at the death of the testator, and appropriated the same to her own use.
    Motion for leave to file a petition in error to reverse the judgment of the District Court of Muskingum county.
    The original action was brought by J. H. Hawkins Co. v. Alexander Johnston, executor of John Johnston, deceased, on an account against the testator for goods sold and. delivered in his lifetime.
    The answer denied the liability of the estate.
    On the trial the issue was whether the goods in question were furnished on the credit of the testator, or solely on the credit of his wife, Margaret Johnston.
    The testator and Margaret were married in 1857. At the time of the marraige she was carrying on business as a; •milliuer, and had on hand a stock of goods of about the: value of $1,500.
    After the marriage, the testator fitted up a room in his; dwelling house for the accommodation of the business ; and the stock of goods was immediately thereafter removed to such room, where the business was carried on until his death, which occurred in the latter part of the year 1872.
    At the time of the testator’s death the stock of goods did not exceed in value $150, and ¡consisted of articles not generally saleable.
    The account sued on was for millinery purchased for carrying on the business.
    On the trial, the court allowed the defendant to prove that Margaret Johnston, the widow, after the death of the testator, without objection from the executor, took what was left of the stpck, and collected such of the accounts for goods sold as were unpaid, and applied the same to her own use.
    The court also instructed the jury to the effect that they might consider this evidence as bearing upon the question of the defendant’s liability for the indebtedness sued on.
    The plaintiffs duly excepted to the admission of the evidence, aud to the charge.
    Verdict was returned for the defendant, on which judgment was rendered.
    The plaintiffs filed a petition in error in the district court, assigning, among other errors, the admission of this-evidence and the charge of the court thereon.
    The judgment was reversed by the district court and a, new trial ordered.
    Application is now made to obtain the reversal of the judgment of the district court.
    
      Beans Beard,, for the motion.
    
      Southard $ Southard, contra.
   White, J.

We are unanimous in the opinion that the-district court were right in reversing the judgment.

On this application, we only deem it necessary to notice one of the grounds of error assigned in the district court; and that is the ruling of the court in allowing the executor to prove that the widow took what was left of the stock at the death of the testator, and collected the debts outstanding for goods sold.

The admission of this evidence was, in effect, allowing the executor to give his own conduct and that of the wüdow in evidence to discharge the estate from liability.

If the testator was bound for the payment of the indebtedness when it was contracted, no subsequent conduct of his, acting either separately or in conjunction with his wife, in dealing with the stock of goods, could discharge-him from liability; and the same is true of the executor.

The plaintiffs had the right to have the validity of their demand determined upon the state of facts existing at the time the indebtedness was incurred. If they saw proper to show the subsequent conduct of the testator or of his executor, they were at liberty to do so. But the executor could not give his own acts or admissions, nor those of his testator subsequent to contracting the debt, for the purpose of discharging the estate from liability.

The widow was a stranger to the suit; and subsequent to the purchase of the goods, her conduct, with which the plaintiff's were not connected, cduld not affect their rights against the estate.

Leave refused.  