Willis Barnes Perkins
Published: 2013-09
Total Pages: 118
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This historic book may have numerous typos and missing text. Purchasers can usually download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1915 edition. Excerpt: ... the statute should apply. The proceeding was prosecuted by proponents, who are the representatives of Francis Lambie. It was to determine whether such estate was or was not the owner of valuable property. Upon this Neil McMillan, as contestant, joined issue, and was permitted to testify that Francis had admitted that this claim was invalid. Had Neil been a claimant against the estate of Francis for never so small a sum, or in replevin or in ejectment for the property in dispute, his testimony would have been within the statute. How is it any the less so when the representatives of Francis institute a proceeding to settle the same question? This proceeding is prosecuted by a representative of a deceased person. It is defended by Neil McMillan. Property claimed to belong to the estate of Francis Lambie is the stake. Under the strict letter, as well as the spirit, of the statute, this testimony should have been excluded." In this ruling the court was clearly right. It was a proceeding prosecuted by the representatives of the deceased Francis to established the title to his estate. It was also a proceeding prosecuted by the same representatives to establish the will of Anne Lambie, Francis' wife, in which the latter had been named as sole beneficiary. The principle of exclusion applies whether the proceeding is prosecuted by the beneficiary himself in his lifetime, or by his representative after his death. In either event the statute excludes the testimony of the survivor as to matters equally known to the deceased. 30. 1901, Wallace v. Fraternal Mystic Circle, 127 Mich., 387. In this proceeding, therefore, the contestant was incompetent as to matters known to the deceased Francis, for the reasons stated by the court. For the same...