Summary
The Supreme Court of Appeals of West Virginia reversed a judgment for an estate administrator in an action against an alleged surety on a decedent's note. The Court held that a note need not be appraised before suit is filed, only before judgment, and that signature comparison evidence was permissible once genuineness was admitted. However, the trial court erred by excluding the defendant's testimony and his witness's testimony about the same transactions after the decedent's widow testified, because the statutory bar had been opened. The case was reversed and remanded for a new trial.
Topics
Practice areas
Questions Presented
- Whether a note belonging to a decedent's estate must be appraised before it can be used as evidence in an action.
- Whether the trial court erred in admitting comparison papers without proof of genuineness at the time they were offered.
- Whether the defendant was improperly prevented from testifying about personal transactions with the decedent after the widow had testified about the same transactions.
- Whether the witness Long should have been permitted to testify about a conversation between the defendant and the decedent.
Holdings
- A note belonging to a decedent's estate need not be appraised before the action is instituted; it is sufficient if it is appraised and properly endorsed by the appraisers before the note is offered as evidence at trial.
- The trial court's admission of comparison papers without immediate proof of genuineness was improper, but the error was harmless because the defendant later admitted the genuineness of his signatures.
- When the widow, a distributee, testifies about personal transactions and communications between the defendant and the decedent, the statutory prohibition against the defendant testifying about the same transactions is lifted, and the defendant must be permitted to give his version.
- The witness Long, though the principal obligor and originally a party, was not interested in the event of the suit after judgment had been taken against him, and even if interested, the widow's testimony about the same conversation made him competent to testify.
Key quotations
“It is enough if a note is appraised and properly endorsed by the appraisers before the note is offered as evidence.” (767)
“When she testifies against defendant as to his personal transactions and communieations with the decedent, the door is then opened, by the terms of the statute, for defendant to speak of the same personal transactions and communications.” (768)
“We reverse the judgment, set aside the verdict, and award a new trial.” (769)
Factual background
The administrator of an estate sued James L. Long as surety on a note made to the decedent. Long denied signing the note. At trial, the widow of the decedent testified about personal transactions and communications between Long and the decedent, tending to show Long signed the note. Long sought to testify and to call a witness, Long, to rebut the widow's testimony, but the trial court excluded that evidence. The jury found for the plaintiff, and Long appealed.
Procedural history
The administrator of an estate sued the surety on a note. The jury found for the plaintiff. The defendant appealed.
Remand instructions
Award a new trial.