Eckford v. De Kay

Citations

• 6 Paige Ch. 565
• 1837 N.Y. LEXIS 240
• 1837 N.Y. Misc. LEXIS 54

Syllabus

<p>Where the testator gave an absolute conveyance of a part of his real estate, in which his wife joined, and afterwards by his will devised his real and personal estate to his executors and trustees, in trust, among other things to support the widow out of the same until 1840; and the executors and trustees after the death of the testator filed a bill to redeem the premises so conveyed by him ; Held, that the widow, who was entitled to dower in the testator’s real estate, in addition to the provision in the will for her support, was Hot a competent witness for the complainants to establish the fact that the deed, although absolute on its face, was only intended as a mortgage or security for the payment of a debt.</p> <p>A complainant who may be made liable for costs if he does not succeed in establishing the claim set up in the bill, is not a competent witness to prove the facts necessary to sustain the suit, although he has no personal interest in the subject matter of the litigation.</p> <p>A defendant in the cause may examine a mere nominal complainant, with his assent, as a witness against the real complainant. But a defendant who has a common interest with the complainant in the suit, cannot examine such complainant as a witness against a defendant for the purpose of sustaining the claim made by the bill.</p> <p>Where one of the complainants who is a necessary party, but who has no personal interest in the subject matter of the litigation, is a material witness to prove the facts necessary to sustain the suit, the proper course, where the nature of the case will admit of such a change of parties, is to move to strike out the name of such nominal complainant and to make him a party defendant; so that he may be examined as such witness.</p> <p>A party complainant cannot be examined as a witness against the defendant, either in behalf of himself or of his co-complainants.</p>