Sykes v. Bates.

His counsel stated to the court, that they did not offer him as a general witness, but merely to prove that the package sent to Bates contained $1,000. Defendant objected, but the plaintiff was permitted to testify that "on the 3d day of," etc., "I put $1,000 in the express office at Morrison, Ill., in a package directed to Joseph Bates, Jr., care G. A. Kellogg, Nevada, Iowa, and ordered it to be sent as directed; there were two $500 bills; I called the attention of the express agent to the inclosure of the two $500 bills, but he refused to notice them, saying it was contrary to the rules of the company to count money; there was no other person present at the office at the time the money was left."

After this testimony was given the court refused to exclude it, and the defendant excepted.

It is insisted by the defendant, that under section 3982 of the Revision, this evidence is incompetent, because the defendant was the executor of a deceased person, and the fact testified to transpired before his death. In our judgment the testimony was admissible.

The other evidence had established the contract; the fact that the plaintiff was to send $1,000 by express; that a package containing money had been received at the express office in Nevada, directed to Bates, in the care of Kellogg,—all as agreed; but there was no evidence as to how much the package contained. Fowler, who received it from Kellogg, had absconded. No other person than the plaintiff knew how much it contained.

From the necessity of the case, we think it was competent for the plaintiff to testify to the amount or sum that it contained when he deposited it in the express office.

This is analogous to the well known rule which allowed a party, though disqualified to testify generally, to give evidence of the contents of his lost baggage or trunks in an action against a carrier or innkeeper.

Huey v. Huey.

The reception of the plaintiff's testimony, under these circumstances, as to the amount of money which the package contained, is not in contravention of the meaning and intention of the statute (§ 3982), although it is apparently against the strict letter of it.

The section of the statute just named did not intend, with respect to cases in which an executor was an adverse party, to make the rule as to the competency of evidence more strict than it was at common law, and at common law the evidence, for the specific purpose for which it was offered and used, was, from the necessity of the case, regarded as competent.

The judgment in this case against the executor is in form erroneous.

It should be corrected, so as to require the sum recovered to be levied of the goods and chattels of the deceased, in the hands of the defendant to be administered. Voorhies & Co. v. Eubank, 6 Iowa, 274; Foteaux v. Lepage,

id. 123.

The judgment below will be affirmed, and the cause remanded to the District Court, that the correction above suggested may be made.

Affirmed.

STRUED.

HUEY V. HUEY et al.

1. Evidence: ADMISSION OUT OF REGULAR ORDER: STATUTE CONSection 3070 of the Revision, authorizing the reception of evidence to correct an evident oversight or mistake at any time before the cause is finally submitted, does not deny to the court the power to receive, in its discretion, any evidence out of its usual order, where there is no surprise to the opposite party, and justice is thereby promoted.

2. Executor: NON-RESIDENCE OF: JURISDICTION. In an action by the widow of a decedent to recover of the administrator her distributive

3.

4.

5.

Huey v. Huey.

share of the personal property, which he has been ordered by the County Court to pay over to her, he cannot urge as a defense to the action, that the order was void because he was at the time of the making thereof a resident of another State, and that notice of the application therefor was served on him in such other State. Especially where it appears from the record, that it was found by the County Court, that the administrator "was served with due and legal notice."

LIABILITY OF ADMINISTRATOR FOR INTEREST. Where an administrator fails and refuses, after being ordered by the County Court, to pay over to the widow her distributive share, the action of the court below charging him with interest on such share from the time it should have been paid, will not be disturbed.

LIABILITY OF WIDOW: RENT OF HOMESTEAD: PERSONAL PROP

ERTY. The administrator has no right to recover of the widow, rent for the use and occupancy of the homestead.

Nor for the value of personal property presented to her by her husband or friends, or owned by her in her own right.

Appeal from Jefferson District Court.

TUESDAY, FEBRUARY 2.

PLAINTIFF is the widow of John T. Huey. In this action she seeks to recover of the defendant, Samuel C. Huey, and his co-defendants (who are sureties upon his bond as executor of the husband's estate), the amount of her distributive share as such widow. Trial and judgment for plaintiff, and defendants appeal.

Negus & Culbertson for the appellants.

C. C. Nourse for the appellee.

WRIGHT, J.—It seems that after plaintiff rested her case, defendants' counsel moved for a nonsuit, upon 1. EVIDENCE: the ground that the evidence was not sufficient, of regular or- etc. The court intimated some doubt whether plaintiff had shown any breach of the bond, and thereupon plaintiff asked leave to offer "further evi

admission out

der: statute

construed.

Huey v. Huey.

dence-in-chief in support of the action." Defendants objected; objection overruled, and plaintiff was permitted to offer additional evidence, to which defendants excepted. And herein we have the first matter presented for our consideration. Whether the defect in the proof was technical or substantial we have no means of knowing, for the record makes no disclosure of the evidence afterwards introduced. Nor does it appear that the case was "finally submitted." The right given by section 3070 (Revision), to receive evidence to "correct an evident oversight or mistake," by no means denies the power of the court to receive evidence out of the usual order, where there is no surprise, and justice is thereby promoted. There is nothing to indicate that this rule was violated in this instance. We cannot say that the court abused its discretion. In this view of the record, nothing need be said as to whether defendants' motion "for a nonsuit 99 was or was not proper, under the statute. It is objected that the facts found by the court, do not show, that the executor had violated the condition of his bond. And here it is urged that he was not non-residence liable until ordered by the County Court to pay over this distributive share. That there was such an order as to part of the assets is not denied. But it is said that the executor was a resident of another State, that notice of the application for such order was served on him in such State, and that the County Court, therefore, had no jurisdiction, etc. In his representative capacity he was, however, subject to the jurisdiction of the court granting administration. Not only so, but the County Court (upon what proof of service does not very conclusively appear), found expressly that the executor was "served with due and legal notice." This, if not conclusive in this proceeding, at least shows, prima facie, that the court had jurisdiction.

2. EXECUTOR:

of: jurisdic

tion.

of administra

Huey v. Huey.

A part of the money collected by the executor was invested in government bonds, and some interest realized 3. liability thereon. In addition to this, he received tor for interest. about $100, after the order was made to pay to the widow her distributive share. It is insisted, that the order could not extend to the additional sums, and that plaintiff should not have recovered any part of the sums thus received, because not collected or realized before the making of such order. As to the interest, of course, there is no trouble, for it was merely the incident to the principal sum which the executor was holding in trust, and from which he realized this much for the benefit of the widow and all others interested. And as to all the sums, there was such failure to account, such apparent, if not actual, defiance of the citations issued from time to time, and such resistance, in this proceeding, of plaintiff's right to this money, that defendant is in no position to resist its recovery. That plaintiff was entitled to interest at six per cent from the time the distribution should have been paid, cannot be doubted. And upon this basis, we cannot say that the recovery was excessive.

4.

- liability of widow: rent of homestead: personal property.

66

66

Defendant, however, insists that the plaintiff was indebted to the estate for certain items annexed to his answer; that she had received more of said estate than she was entitled to, etc. The "schedule annexed" charges her with "house rent," dining tables,' beds," "gold watch," "carpet," "chairs," etc., etc. It is not now proper to examine into the right of the executor to recover for these items in detail. It is sufficient to remark, generally First, as to rent (of homestead), plaintiff, upon the facts shown, would have no right to the same, in his capacity as administrator. We are far from recognizing the right of any one to demand the same, and least of all the administrator. Second, some of the items were "pres