Chapter 42 - § 42.14 • SUBJECT MATTER OF TESTIMONY

• Jurisdiction: Colorado

§ 42.14 • SUBJECT MATTER OF TESTIMONY

The nature of the testimony in some cases affects the competency of the witness, as illustrated by the following summaries of cases.

When a beneficiary under a will is called for cross-examination by an adverse party and the testimony is against his interest, the testimony is admissible because he did not take the stand of his own volition.⁹⁶ Note also the statutory "rebuttal" testimony exception discussed in § 42.4.

In a suit on a debt of a decedent, the defense was payment. The administratrix could introduce books in the decedent's handwriting to show payment, but they are received with caution.⁹⁷

In a will contest, the contestant may testify to the loss of letters from the decedent, but she cannot testify as to their contents.⁹⁸

Until a witness is asked a question that he is incompetent to answer, it is not necessary to object, and failure to object is not a waiver.⁹⁹

A director of a bank that had held a note as collateral, the bank having been paid in full, could testify in a suit on the collateral note as to matters during the lifetime of the decedent since the bank had no interest in the outcome of the suit.¹⁰⁰

In a proceeding in which the marriage status was in issue, the widow may not testify, over objection, to the receipt in the mail of letters from the decedent and identify them as the ones she so received.¹⁰¹

In a will contest, the proponent was called for cross-examination. The statute does not prevent this.¹⁰²

Where several members of a family had agreed to contribute to a gift to another member of the family, and one of the promisors died, a claim was filed against his estate for the amount he had agreed to contribute. At the hearing on the claim, the other promisors were competent witnesses since their testimony made them liable on their own promises and they were not interested directly in the outcome of the claim.¹⁰³

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Notes:

^[96] Estate of Thomas, 356 P.2d 963 (Colo. 1960).

^[97] McMahon v. Williams, 250 P. 560 (Colo. 1926); see Denver Nat'l Bank, 298 P.2d 386; Estate of Sabin, 80 P.2d 950 (Colo. 1938).

^[98] Swedish Church v. Benson, 237 P. 165 (Colo. 1925).

^[99] Norris v. Bradshaw, 18 P.2d 467 (Colo. 1932).

^[100] Kitts, 300 P. 610.

^[101] Carpenter v. Ware, 36 P. 298 (Colo. App. 1894).

^[102] Ofstad v. Sarconi, 285 P.2d 828 (Colo. 1955).

^[103] Sussman v. Barash, 401 P.2d 608 (Colo. 1965).