
    Keyes v. Gore.
    In an action to recover real property, in which the plaintiffs relied upon a deed claimed to have been made to their father, since deceased, where the question was whether the deed had in fact been executed and delivered, the widow of the decedent, not being a party, is a competent witness to prove such execution and delivery, notwithstanding the last clause of Rev. Stats. § 5243 ; and the fact that her right to dower in the premises may depend on the validity of the deed, will make no difference.
    Motion for leave to file a petition in error to reverse ■ the judgment of the District Court of .Lawrence county.
    William Gore, sen., owner of a tract of land in Lawrence county, conveyed it in 1858 to his son, Madison Gore, who died in 1864, seized thereof, leaving to survive him his widow Elizabeth and three children, Delilah Keyes, Tabitha Mitchell and James M. Gore. This is the claim made by Delilah, Tabitha and James M., in the action which they prosecuted in the court of common pleas of Lawrence county, against Joseph Gore and others, to recover possession of the lands;- The defendants claimed under William Gore, sen., common source of title, who died in 1881, and the rights of the parties in the action depended on the question whether such deed had in fact been executed and delivered to Madison Gore.' To prove such execution and delivery, the plaintiffs called their mother, Elizabeth, but the defendants objected to her testimony on that subject, on the ground that as the widow of Madison Gore she would be entitled to dower in the premises, if such deed was executed and delivered, and consequently slie was not a competent witness for such purpose. The court sustained the objection and the plaintiffs excepted, and a verdict having been rendered for the defendants, judgment was rendered thereon, which judgment was affirmed in the district court, and now the plaintiffs ask leave to file in this court a petition in error to reverse both judgments.
    
      O. F. Moore and W. H. Enochs, for the motion.
    
      JR. Leeie, contra.
   Okey, J.

There was error in rejecting the testimony. As Elizabeth, the widow, was not a party, there was no statutory provision which in terms excluded the testimony, however largely the witness may have been interested in the result of the suit. Nor was the evidence excluded by the concluding clause of Rev. Stats. § 5242, providing that “ when a case is plainly within the reason and spirit of the last three sections, thougli not within the strict letter, their principles shall be applied.” Not only was she not a party, but a judgment in favor of the plaintiffs would not have determined her right to dower in any action she might prosecute therefor. We need not determine what the effect would be as to the admissibility of her testimony, if a judgment in favor of the plaintiffs would be conclusive in her favor on the question of dower. The proper interpretation of the provision in question was considered to some extent in Cochran v. Almach, 39 Ohio St. 314. I was unable to concur in that decision for reasons there stated ; but the question in this case is different, and without entering further into the question of the proper construction of that provision, we all unite in holding that the testimony of the witness was competent, notwithstanding such provision, and hence that the court erred. The only objection to the testimony was to its weight, not its competency.

Leave granted to file petition in error, judgment reversed and cause remanded for a new trial.  