PERKINS v. PERKINS

In a suit by an administrator to recover a bank-book of one who claims it as executrix and sole legatee, the defendant will not be permitted to testify as to conversations and transactions between the testator and intestate, if the administrator does not elect to testify. An executrix cannot interpose the statutory limitation of three years in bar of a suit arising out of the transactions of the testator, but brought against her in her private capacity.

BLODGETT, J.

The offer of the defendant to testify to conversations and transactions between her deceased husband and the plaintiff's intestate was alike properly rejected as a matter of law and of discretion, under the statutory provisions excluding the testimony of the adverse party in respect to facts which occurred in the lifetime of the deceased, where an administrator or executor is a party of record or a party in interest, unless the administrator or executor elects so to testify, or it clearly appears to the court that injustice may be done without the testimony of the other party. P. S., c. 224, as. 16-18; Chandler v. Davis, 47 N.H. 462, 465; Harvey v. Hilliard, 47 N.H. 551, 553; True v. Shepard, 51 N.H. 501, 502; Holt v. Russell, 56 N.H. 559, 563; Drew v. McDaniel, 60 N.H. 480, 482; Tuck v. Nelson, 62 N.H. 469, 471, 472; English v. Porter, 63 N.H. 206, 215. In brief, there is nothing in the reported facts to take the case out of the general rule that ordinarily "the safe guide and the decisive test is found in the inquiry whether the deceased, if alive, could testify to the same matters."

The suit being against the defendant in her private capacity, she cannot interpose the statutory limitation of three years (P. S., c. 191 s. 4) in bar of its maintenance; nor could she if it were against her in her official capacity as executrix of her deceased husband's will, the suit having been brought "within two years after the original grant of administration" upon the estate of the plaintiff's intestate, in whose favor the right of action against the husband existed at the time of her death. Ib., s. 6; Brewster v. Brewster, 52 N.H. 52, 59; Horse v. Whitcher, 64 N.H. 591, 592.

Exceptions overruled.

WALLACE, J., did not sit: the others concurred.