
    [Lancaster,
    May 24, 1826.]
    BOYER against KENDALL, Administrator of KENDALL.
    IN ERROR.
    The creditor of a- deceased person may be a witness for liis personal representative, where it does not appear with certainty that the estate is insolvent.
    This was a writ of error to the Common Pleas of Berks county, in which court, the defendant in error, Joseph Kendall, administrator of Samuel Kendall, deceased, brought suit against Jacob K. Boyer, the plaintiff in error.
    On the trial, the plaintiff' offered John Miller as a witness, who being sworn on his voire dire, said, “ I have a small claim on Samuel Kendall’s estate of about twenty dollars on book account. I dont think the estate is sufficient to pay the debts. John Kendall’s and Elisha Geigers’s estates have each a large claim on the estate of Samuel Kendall, amounting to about ten thousand dollars. If Mr. Boyer establishes his claim in this action, the estate of Samuel Kendall will not be sufficient to pay all the claims, unless there is more property'than I know of.” This testimony was objected to by the cotinsel for the defendant, and admitted by the court, which was the only error assigned.
    
      Baird and Hayes for the plaintiff in error.
    
    Miller was not a competent witness, because no man can be a witness to increase a fund in which he is to participate. Therefore a bankrupt cannot be a witness to increase his estate; nor a residuary devisee to in-, crease the fund; nor a specific legatee to disprove a claim against the estate of the testator; nor can an heir be a witness for the administrator in an action against a debtor of the estate. 1 Phill. Ev. 51. (note c.) 14 John 146. 2 Day 466. 2 Munf. 452. 1 Mass. Hep. 239. 1 Dali. 62. 2 Dali. 50. 4 Mass. Rep. 518.
    
      Darling for the defendant in error,
    relied on the opinion of this court in Youst v. Martin. 3 Serg. & Rawle, 423. He observed, that it was by no means clear that the estate of Samuel Kendall was insolvent. No administration account had been settled, and of course it-was not ascertained that there was not enough to pay all the debts. The witness merely said, that the estate would fall short, unless there was more property than he knew of.
    
   The opinion of the coui’t was delivered by

Rogers, J.

Every creditor has an interest more or less to increase the funds of his debtor, as it adds to the security of his debt, and yet there is no doubt that a creditor is a witness either for the debtor himself or his personal representatives. It has been decided in 12 Mod. 385. Crow v. Brown, “ That a legatee may be admitted to prove assets in the hands of the executor, in a suit by a creditor.” And in that case it is conceded that one creditor may be admitted to prove assets in an action by another creditor. Miller does not acknowledge any expectation that he will be bettered by the,fate'of the cause, nor does he say that he believes that the payment of his debt, depends upon the event of the suit, so as to bring the case within the principle decided in Innis v. Miller, 2 Dall. 50. All he states is, “that he is a creditor for twenty dollars, — that the estate is not sufficient to pay the debts — and that if Boyer establishes his claim, the estate will not be sufficient to pay all claims unless there is more property than he knows of.”

If Miller be incompetent, it must be because they have brought him within the exception to the rule, that a creditor shall not be excluded from giving testimony, as such. This exception should not depend upon evidence, which in its nature is uncertain, and which would lead to an inquiry expensive and dilatory. Indeed in many cases it would be impossible to ascertain the situation of1 the estate, until final settlement. Let the exception then, be rather to his credit than his competency. The jury under the direction of the court will be fully able, under the circumstances of each case, to do justice to the parties.

In general, the creditor of a deceased person may be a witness although his testimony tends to increase the estate of the deceased. 3 Serg. & Rawle, 427.

The exceptions to the rule are cases of bankruptcy or notorious insolvency, such as a voluntary assignment for the benefit of creditors or a discharge under the act for. the relief of insolvent debtors. In those cases he is excluded, because he has a legal fixed interest in the event of the suit, his testimony, going directly to increase the divisible fund of the bankrupt or insolvent.

Judgment affirmed.  