Eckford and others v. De Kay and others, 6 Paige Ch. 565

The Chancellor. Without expressing an opinion upon the question whether an executor in trust can be examined as a witness for the purpose of increasing the trust estate, as to which there appears to be some doubts in the courts of England, I am satisfied that Mrs. Eckford is not a competent witness in the present suit, even if the technical objection that she is a party did not exist. The sole object of the suit is to change what purports to be an absolute deed, from H. Eckford and his wife, into a mortgage; and to be permitted to redeem it as such.

If the deed stands, her dower right in the premises is extinguished ; but if it is redeemed as a mortgage, she will then be restored to her right of dower. Again; she is interested in increasing the fund and preventing its being diminished by costs or otherwise, inasmuch as she is to be provided for until 1840 out of the estate.

Perhaps the interest of Clinch, under the provision in the will to pay him a yearly compensation for his special services, may be considered as merely nominal, although it was decided by the supreme court of one of our sister states that the allowance to which an executor was contingently entitled as a commission upon the sum to be recovered rendered him incompetent as a witness. (Henderson and others v. Neff, 11 Serg. Rawle, 218.) There is another objection to the competency both of Clinch and Mrs.

Eckford as witnesses to sustain this suit; and that is their liability for costs if they do not succeed in establishing the claim set up in their bill. It appears to be a well settled rule in all courts that a person in whose name a suit is brought, and who may be made liable for the payment of costs if he fails in his suit, is not a competent witness to establish the facts necessary to sustain such suit; (Garde’s Law of Evid. 8, 9. 3 East. Rep. 7. Phillips v.The Duke of Bucks, 1 Vern. 230. Casey v. Beachfield, Gilb. Eq. Rep. 98. Gres.

Ev. in Eq. 243.) There is a class of cases in which a defendant has been permitted to examine a mere nominal complainant, with his assent, against the real plaintiff. This, however, is not a case of that description, as the object of the petitioners is to examine a part of the complainants as witnesses in favor of themselves and their co-executors, to enable them to sustain their suit. It is true, the application nominally is, to examine them as witnesses in favor of the petitioners who are defendants.

But such an examination would be entirely useless if the testimony could not be read, upon the hearing, in favor of the complainants. For the bill in this cause must be dismissed, whatever the other defendants may prove* unless the complainants can establish the fact that the absolute conveyance to their testator was intended as a mortgage.

In fact, the petitioners and a part of the complainants have a common interest in this application, so far as relates to the beneficial interest in the trust estate; as two of the petitioners arc the wives of two of the complainants, and ought more properly to have been made complainants* with their husbands, instead of being made defendants; (Clarkson and wife v.

Depeyster, 3 Paige’s Rep. 336.) Where the complainants and a part of the defendants have a common interest, adverse to that of the other defendants* an application by those defendants to examine a complainant against such othér defendants is substantially the same as if the complainants themselves made the application; in which case it is the settled law of the court that one complainant cannot be examined as a witness either in behalf of himself or of a co-complainant. (Hewatson v. Tookey, 2 Dick, 799: Phillips v.

Duke of Bucks, 1 Vern. 230.) The proper course, where the nature of the suit will admit of such a change, is to move to strike out the name of the nominal complainant who is not interested, and make him a party defendant, so that he may be examined as a witness to sustain the suit. (Lloyd v. Wingfield, 1 Hogan’s Rep. 192. Motteau v. Macreth, 1 Ves. jun. 142. Lloyd v. Makeam, 6 Ves. 145. Nicholl v. Trustees of Huntington, 1 John. Ch. 173.) This, however, does not appear to be a proper case for such an application.

The petition must be dismissed ; but under the circumstances of this case—two of the petitioners being infants, I shall not charge the petitioners with costs. But the costs of opposing the application áre to be taxed as costs in the cause if the defendants De Kay and wife succeed in their defence.