COATE vs. COATE'S ADM'R

COATE vs. COATE’S ADM’R. [TROVER FOR CONVERSION OR'SLAVES.] 3. Competency of transferiw as witness for transferree. — A distributee of án estate, ivho is shown to have released-Ho the other distributees his interest in the subject-matter of a'suit brought by the administrator in his representative character,' is -not incompetent as a witness for the xilaintiff under section 2290 of the Code. 2. Comx>etenoy of distributee as witness for administrator. — But such dis-"tribiitee,- notwithstanding such release,- is not a coiripetent witness fór the administrator, on the ground of interest, although he might he rendered competent by a release of his entire interest in the estate. 3. Competency of witness as affected by interest. — An obligor in a bond given under section 1691 of the Code, when administration is committed to the general administrator, the sheriff, or the,soroner, conditioned for the payment of the fees and allowances made by the court: on such administration, “ if the property of the estate is insufficient therefor,” is not, under section 2302 of the Code, incompetent as a,, witness for such-administrator, in an-aetion brought* by him ,in h^s representative- character. . Appeal from.tbe Circuit Court- of...Ciarle;. Tried before tbe Hon. JOHN K. Henry. This action was brought by E. P. Chapman, as tbe ad-.-ministrator of William P. Coate, deceased, against Burr J. Coate, to recover damages for the conversion of several slaves. The.defendant pleaded not guilty, and the statute of-limitations of six years, with leave to give; any. special-matter in evidence, “On the trial,’.’ as the .bill of excep-. tions states, “the plaintiff" introduced one Andrew J. Coate as a witness; to whose competency the defendant objected, on tbe ground that he was interested in the event of this ; suit, and that tbe reeprd in ..this suit would be evidence for lijm in another suit ; -and proved to the court, that plain- .. tiff’s intestate died, leaving no children, and that said witness was bis brother, and one of the distributees of bis es — .. tate. The plaintiff then offered an instrument of writing,, which was proved to have been executed and delivered by said witness, dated the 24-th September, 1860, ;.-by which,.-, be released and conveyed to Mary E. Toland and John S. Coate all his right aad-:,ti,tie,-,both at law .and.equity, in and to tbe slaves which are the subject of this suit, and their hire; and proved .to the court,, that., said, Mary E. Toland' and John S. Coate were, besides said witness, the only dis-tributees of said estate. 'The defendant 'still • objected to the. competency of said -witness,.'on . the" ground above stated, and because said instrument was but-, a transfer of/ said witness’, interest in* the subject-matter "of the suit. The court overruled botlrof said objections, and permitted/ said, witness to testify for the plaintiff; and the defendant - excepted. The defendant further objected to the compe- . tency of said witness, on the ground that he was one of'' the makers of a bond, indemnifying said plaintiff, as the . administrator of said estate, against any fees and allowances for which he might-be liable beyond the assets of/ said estate ; and read said bond in evidence,-after proving.-its execution. The court overruled this objection, and the-defendant excepted.” The condition of said bond, after - reciting that letters of administration on the estate of said ■ inféstate had- been granted, pn„the application of said John.*:. S. Coate, to E. ,P. Chapman, the-sheriff of the county,, was, that “if said John S. Coate shall well and truly pay, or cause to be paid, such fees and allowances as may be made by said court on such administration, if the property • of- the estate if insufficient therefor,, then this obligation to-, be void,” &c. The' overruling of, the, several objections to ■ the competency of .the witness, and-.permitting him to tes- - tify, are the only matters assigned .as.error. Dickinson & Kilpatrick,- for appellant. . William Boíles, contra., [MAJORITY — A. J. WALKER, C. J.] A. J. WALKER, C. J. The objection that. Andrew J/. Coate was incompetent,- because he was a transferror, offered as a witness to- establish a right transferred by him, .is not to be decided upondhe decisions, of this court made - before tbe adoption of the- Code. The subject is covered', by the Code, and tbe question .must be d'etermined by reference to section 2290 of tbe Code, and tbe construction of it which has been adopted- The precise objection-which we are considering, was made and overruled in tbe case of Robinson v. Tipton, (31 Ala. 595,) and by th'at..deci~ . sion wé are willing to abide.. This court .is committed to the proposition,..that tbe distributee is incompetent as a witness for the\administrator, on the ground of interest. — Walker v. Walker, 34 Ala. 469; McLemore v. Nuckolls, at the present term. Tbel witness in this case was incompetent, unless Ms incompetency was removed. To restore the competency of the witness, the plaintiff proved, that the witness had made’a ’ transfer to'two of his co-distributees, of his interest in the slaves in controversy, and the hire of them. It is-well es- - tablished, that- a release" by the distributee, of his entire -interest in the'estate, would have removed the objection. Robinson v. Tipton, supra; Gray v. Gray, 22 Ala. 233; Herndon v. Givens, 19 Ala. 313; Johnson v. Culbreath, ib. 348.; Clealand v. Huey, 18 ib. 343. But we think it is equally clear, 'both upon .principle-'and authority,- that a - mere transfer of the distributee’s interest in the subject--matter of the particular suit will' not have that effect. Notwithstanding such a transfer, the witness is interested in the remainder of the estate, in swelling the fund for the , payment of debts, and in avoiding'the imposition of costs upon the administrator, -whereby the assets .for distribution will be-diminished. The precise question was decided by this cou'rt in Abercrombie v. Hall, (6 Ala. 657,) adversely'-to the competency of the witness. See, also; Maury v. Mason, 8 Porter, 211. As the objection to the competency of the witness last noticed-m'ay be removed upon a future trial, it is.necessary fon-us to-notice another objection. The witness is --one of the obligors in a bond given under section 1691 of 'the Code, conditioned to pay the fees and allowarices made by the probate- court on the administration, “if the prop- - .erty of the estate- is insufficient'ttherefo-r.” The liability - upon this bond'is'contingent upon the facts, that there are fees, and that allowances are made by--the court, and that the property .-of ffhe estate is insufficient therefor.” It is not a bond for the indemnity of the administrator against -the costs of the suit; and the question here ,-is>not at all analogous to that which was decided in Harris v. Plant, (31 Ala. 639,) as to the competenfiy of oneboundtoundemnify the party who offers him. The proceedings in this case are, as to the'obligors in the bond, res inter alios acta. 'We can not perceive ho-w^the judgment could be evidence ■ for them in a suit upon the bond, except in the same sense in wdiich-it would be evidence as to all the world, to prove the fact that such a-judgmcnt -was rendered. -We decide, therefore',-.that the witness, under section 2302 of the Code, ' -was not incompetent, -in consequence of his -beings an ob-ligor on the bond above-named. Reversed -and remanded.