E. Martin & Co. v. Brosnan

Estates of Deceased Persons—Action on Rejected Claim—Administratrix as Witness for Plaintiff—Motion to Strike Out Properly Denied.—In an action on a rejected claim against the estate of a deceased person, where the administratrix of the estate was called as a witness for the plaintiff, was examined and cross-examined, without objection to her testimony as a whole, the defendant cannot be heard to complain, after the witness has left the stand, that her evidence was objectionable as a whole, and a motion then made to strike out all of her evidence, not based upon any valid objection previously stated, was properly denied.

Id.—Cross-examination of Plaintiff’s Witness—Question Calling for Incompetent Hearsay—Exclusion by Court of Its Own Motion.—While, ordinarily, it is the better and safer practice for the trial court to defer action upon the admission or rejection of evidence until a proper objection is made by the party interested in having the evidence excluded, yet, where the defendant, on cross-examination of a witness for the plaintiff, asked a question clearly calling for incompetent hearsay, the trial court is not compelled to hear and determine the cause, either in whole or in part, upon improper evidence, and, in the exercise of its undoubted right to control the conduct of the trial, it may of its own motion rightfully refuse to receive such clearly incompetent evidence.

Id.—Admission of Claim as Evidence—Showing Against Bar of Statute not Required—Waiver of Formal Defects.—The claim sued upon against the estate was properly admitted in evidence over the objection of the defendant. It was not necessary that sueh claim should show on its face that it is not barred by the statute of limitations; and in so far as the objection was directed to the formal sufficiency of the claim, its general rejection in the first instance, without special reason assigned, must be deemed a waiver of any formal defects therein.

Id.—Admission in Answer of Presentation and Rejection of Claim —Proof in Support of Action.—Where the answer affirmatively admitted the presentation and rejection of the claim, no evidence thereof is required, but it is sufficient for the plaintiff to show that the action thereon is founded upon the same claim which was presented to the defendant for allowance.

Id.—Promise of Administratrix to Pay Debt of Deceased Husband to Plaintiff—Credits on Account—^Novation not Established-^Intent.—A promise by the administratrix of the estate of her deceased husband, to pay the indebtedness of her husband to the plaintiff, and the making of some payments to the plaintiff, which were credited on the indebtedness of the deceased husband to the plaintiff, does not establish a novation, or release the liability of the estate to pay the unpaid residue of the plaintiff’s claim. The intent to release the original debtor from the whole of the claim is essential to a novation, and if that intent be lacking, novation cannot be justly claimed.