WILLIAMS' Ex'rs v. TEMPLE, Adm'r

WILLIAMS’ Ex’rs v. TEMPLE, Adm’r. 1. Heirs or distributees are not competent witnesses for the executor or adminis. trator to establish a claim in favor of the estate, although they executé releases of all their interest in the demand in suit. Error to the Circuit Court of Montgomery. The action was by the defendant in error, to recover a debt due her intestate, and to establish her claim, was permitted to introduce as witnesses, two of the heirs and distributees of the intestate, upon their executing releases to her, of all their interest in the particular demand. Fair, for the plaintiff in error cited Green. Ev. 437-8, and note; 4 Cam. 27; 6 Bing 394; 2 Y. & J. 426; 2 Mason, 181; 3 id. 378; 7 Cowen, 64; 2 Ala. 58. [MAJORITY — ORMOND, J] ORMOND, J The witnesses were clearly incompetent to testify, from interest in the event of the cause, as is fully shown by the cases cited. If a recovery is had in this case, it will be a fund in the hands of the administrator to pay debts, and thus increase the fund in which they have a distributive share. If it goes against the administratrix, she must pay costs, and thus diminish the fund of which they are distributees. To this effect are the cases of Sims v. Scott, 2 Ala. Rep. 58, and Maury, adm’r v. Mason’s adm’rs, 8 Porter, 211. The last are expressly to the point. The interest, therefore, was such as from its nature, they could not release. Let the judgment be reversed, and the cause remanded.