Ivers v. Ivers

í estates of proceedings assets?°eífect of party summonea. — I. The defendant set up in his answer that there had been an adjudication of the matters now in conUoversy. The proceeding relied upon as an adjudication was instituted under sections 2379 and 2380 of the Code, in which proceeding the court found that the administrator was not entitled ^ an order for the delivery of the property in question. The plaintiif demurred to this portion of the answer, and the demurrer was sustained.

This action of the court is assigned as error. These sections merely authorize the summoning and examination of the party suspected of having taken wrongful possession of the effects of the deceased. No general evidence can be introduced in behalf of the administrator. Smyth v. Smyth, 24 Iowa, 491; Rickman v. Stanton, 32 Id., 134.

The finding of the court upon such proceeding cannot be pleaded in bar of an action by the administrator to recover the property of the estate.

2. evidence: mínistríUorf lrauS\ons. II. The defendant introduced as a witness Ann Johnson, daughter and heir of Martha Ivers, deceased, and inquired respecting certain personal communications between ydtness and deceased. The testimony was objected to as incompetent, under section 3639 of the Code, and the objection was sustained. We think this ruling was right. The witness, as heir, was directly interested in the result of the suit, unless the estate of *723Martha Ivers was insolvent. We cannot presume that the estate of Martha Ivers was insolvent, for the purpose of admitting the testimony of her heir. The eases relied upon by appellee, Wormly v. Hamburg, 40 Iowa, 22, and Zerbe v. Reigart, 42 Iowa, 229, do not go to the extent of sustaining the admissibility of the testimony in question.

III. The witness, Ann Johnson, executed a paper, which was offered in evidence in the case, in which she disclaims all interest in this action or the result thereof, and all and every interest in the personal estate of Martha Ivers, deceased.

It is insisted that this disclaimer rendered the witness competent. The authorities relied upon by appellant hold that a witness, incompetent on account of an interest vested in himself, may divest himself of it by a release or other proper conveyance. 1. Greenleaf on Evidence, § 426. The disclaimer of the witness did not operate as a release of her interest, and did not in onr opinion restore her competency.

THE SAME. IT. John Ivers, the plaintiff, testified on his own behalf, and detailed a conversation which he heard between the deceased and the defendant respecting the property on „ „ . the farm. Ihe defendant was called as a witness, his attention was called to this conversation, and he was ashed to state the conversation which occurred. The question was objected to, and the objection was sustained. This ruling was erroneous. The prohibition prescribed in section 3639 of the Code does not extend to any transaction as to which an administrator has been examined in his own behalf. For the error in excluding this testimony the judgment is

Reversed.