Kent v. Mason

Citations

• 79 Ill. 540

Syllabus

<p>1. Hearsay—evidence as to statements of one not a party, and, not made in the presence of a party. In a suit brought bjr the administrator of an estate against the executor of another estate upon a promissory note given by the testator, in his lifetime, to the intestate, in his lifetime, it appeared that the note was secured by deed of trust on land of the testator, and that he was considerably in debt, and his land incumbered with other liens, the most of which were owned by a third party, and it was claimed that the note sued on had become the property of such third party, and was paid by said testator in a settlement made by him, shortly before his death, with such third part)--, and testimony was introduced which tended to show that said third party had control of the note: Held, that evidence of what such third party may have said in a conversation when the intestate was not present, was hearsay only, and should have been excluded from the jury.</p> <p>2. Witness—in suit against executor on obligation of testator. A daughter, who has been provided for in her father’s will so as to have no interest in the result of a suit against the executor of her father’s estate upon a note made by him in his lifetime, is a competent witness in such suit, as is her husband.</p> <p>3. Practice—party holding the affirmative entitled to open and close. Where the issue in a suit upon a promissory note is payment, the plea of payment admits the execution of the note, and the affirmative is with the defendant to prove the payment, consequently he has the right to open and close to the jury.</p>