
    No. 66
    HALLEN v. WELSCH et
    Ohio Appeals, 2nd Dist., Franklin Co.
    No. 1455.
    Decided Nov. 5, 1926
    480. EVIDENCE — In an action to recover against an executor for services rendered deceased upon an oral contract, the executor and one who is a devisee and heir at law are not adverse parties and their testimony is not in-compentent under 11495 GC.
    297. CONTRACTS — Where in an action for reasonable value of services against an administrator based on an oral contract, same is not within the statute of frauds, due to the fact that real estate is part of deceased’s es-state, the contract is introduced to show that the services were not gratuitous and based on family relationship.
    Attorneys — John W. Wilson for Hallen; John F. Carlisle, Ralph Merchant for Harry .Welsch; Johnson, Sharp, Schooler & Toland for Marie Welsch.
   Margaret Hallen presented her claim for services in the amount of $9540 against the estate of her step-father William Welsch. Marie A. Welsch, the mother of Margaret Hallen and the widow of decedent, was the executrix of the estate. The executrix allowed the claim, but upon demand and by giving bond by Harry S. Welsch, heir at law and devisee of the decedent, the claim was rejected.

Margaret Hallen then brought her action in the Franklin Common Pleas against Marie Welsch executrix and Harry Welsch, claiming reasonable compensation for work and labor performed over a period of fifteen years. The claim was based on an oral contract whereby the decedent promised if she would work for him, he would leave her % of his estate.

On the trial of the case, Hallen called upon Harry Welsch and Marie Welsch to testify and the trial judge excluded them on the ground that they were interested parties and therefore could not testify against the interest of the estate. The trial resulted in a verdict for the executrix and error is prosecuted to the Court of Appeals to reverse this judgment, the court holding:

1. Sec. 11495 GC. provides: — “A party shall not testify when the adverse party .... is an executor .... or claims or defends .... as legatee of a deceased person,” it being clear that such party or parties so rendered incompetent must be adverse to the executor or administrator and we are of the opinion that Margaret Hallen was the only person rendered so by the statute.

2. “Interest in the controversy is of itself no longer regarded as a sure ground of presumption that a party or witness will testify falsely or give testimony colored or biased in favor of such interest. Under the present system of practice, equality of the parties to the suit is the object to be subserved rather than the weighing in delicate scales, the degree of interest the witness may have, leaving that to be considered as affecting his credibility.” 78 OS. 331; 102 OS. 18.

3. An administrator is competent to testify in his own behalf, 21 OS. 858, and is competent to be cross examined by the adverse party and the trial court erred in excluding her.

4. Harry Welsch was in no way made incompetent as a witness as he was not an adverse claimant even if there were some words between him and the executrix as to the allowance of the claim.

5. It is further claimed that this action based upon an oral contract would be within the statute of frauds as part of the deceased’s property was real estate.

6. If the action had been brought to recover land and money under such a contract such would be the case, but the action was for services and the contract used only to rebut the gratuity of the services, and therefore not within the statute. 1 OS. 66.

Judgment reversed.

(Ferneding & Kunkle, JJ., concur.)  