Jacob Dascomb & another, Executors vs. Levi Davis, 5 Met. 335

Dewet, J. Several objections are taken to the ruling of the court of common pleas in this case. 1. That admitting the testator, George French, to have been the lawful owner and to have died seized of the premises upon which the trespasses are alleged to have been committed, yet that the plaintiffs, under the will of said French, derived no such title or interest in the lands devised, as would authorize them to maintain the present action.

Upon this point, the court are of opinion, that under the very broad authority, given by the will to the executors, to manage as well as dispose of all the real estate, and as the proceeds of two' thirds of the same were to be retained by them until the children of the testator severally arrived at the age of twenty one, the executors acquired the right to maintain an action of trespass for any illegal entry upon the land, if the testator died seized and possessed thereof. 2.

Did the judgment in partition, rendered on the petition of George French, at the court of common pleas, September term 1828, by which this land was set off to him in severalty, vest in him the possession, so that the same was transmissible by his will ? We think such was the effect of the judgment in partition. This proceeding was instituted by virtue of Sts. 1783, c. 41, and 1786, c. 53, authorizing partition, upon petition of one of the tenants in common. The latter of these statutes provided the mode of settling any controverted facts between the parties, as to their interest in the premises.

Such partition, legally made, "s declared by the former of these statutes, § 1, to be valid to all intents and purposes. That it established the right of possession, as against all the cotenants, and also against one claiming to hold in severalty, was directly decided in the case of Cook v. Allen, 2 Mass. 470, to which case I refer for a very full and able consideration of this point. The Rev.

Sts. c. 103, §§ 33, 38, seem to have gone further, and made such judgments in partition binding, not only on the right of possession, but the right of property also, as to all parties and privies to the judgment, including all persons who might by law have appeared and answered to such petition ; saving only the right of one claiming to hold the premises in severalty, and who has not appeared in the petition for partition, to institute an action for the land so claimed by him.

Nor do we percieve any thing in the other facts disclosed by the testimony, that defeated the right of possession acquired by virtue of the judgment in partition. 3. The remaining question, viz., whether Paschal Abbot was a competent witness in this case, is one of more difficulty and doubt. He was one of the plaintiffs in the action, and upon the ordinary common law rule applicable to the admission of testimony, he would have been an incompetent witness.

If admissible at all, he is so by force of St. 1839, c. 107, § 2, which is in these words : “ Any executor, administrator, guardian or trustee, who may be a party to any suit at law or in equity, having no interest therein, except such as arises from his liability for costs and expenses of suit, may be a witness, in such suit, to any matter known to him before he assumed the trust of his appointment ; provided he shall first release his right to recover costs in such suit, or shall receive, or have tendered to him, such security for his liability for costs, as in the opinion of the court before which the case is pending, shall be sufficient to indemnify him on account thereof.” The precise question here is, whether enough was done to remove the disability which attached to the witness, by reason of his relation to the case, as a party.

That the receipt of a bond, with surety, to indemnify the plaintiff against all cost which the defendant might recover, would not remove all pecuniary interest in the issue of the trial, must be quite obvious ; as in the event of a recovery, he would be entitled also, as plaintiff, to recover his taxable costs : Whereas if a judgment was rendered for the defendant, the plaintiff would re cover no costs.

His interest arises from two sources ; first, he is interested in maintaining the action, as thereby he recovers sosts ; and secondly, he is interested in maintaining the action, as upon the failure so to do he is liable to pay costs to the defendant. The bond tendered and accepted, in the present case, only removed this latter interest.

It was a bond to indemnify him against all costs which the defendant might recover If therefore the result of the question of the competency of the witness depended upon the fact whether all his interest had been removed, we should have no hesitation in saying that he was incompetent. This however is not, strictly, the inquiry; but the question is, whether the statute has not, by force of its provisions, made him a competent witness, upon his being indemnified against his liability for costs to the defendant. Giving the statute a literal construction, such is obviously its effect.

It provides two modes, by which the disqualification may be removed ; he may release his right to recover costs, or he may have tendered to him a bond to indemnify against costs. Should or be read and, in this statute ? Clearly it is necessary to read it so, if we would give it a construction which would remove all interest from the witness. But before adopting such reading of it, it must be made very apparent that it would then be in a form of expression that would effectually secure the object of the legislature. But thus to read it, would, in another aspect, defeat the very purposes of the act.

The party, who may be executor or trustee, is to be a witness at the request of either party, upon compliance with the provisions of the statute ; but if or be read and, the other party can never remove the disability of the witness ; as it is the executor himself, who only can release his right to costs ; and therefore, in such case, all the party can do, is to tender a bond of indemnity for costs.

The construction proposed is not, therefore, so manifestly within the design of the legislature, as to authorize us to adopt it; and such being the case, we are brought back to the language of the statute, which, in its terms, permits the introduction of the testimony of the executor, upon having tendered to him such security for his liability to costs, as in the opinion of the court, before which the case is pending, shall be sufficient to indemnify him on account thereof. Adopting this rule of construction of the statute, the witness was competent, and properly admitted.

The result is, there fore, that the ruling of the court of common pleas was correct. Exceptions overruled.