Chapter 42 - § 42.8 • CASES IN WHICH PERSONS WERE DISQUALIFIED

• Jurisdiction: Colorado

§ 42.8 • CASES IN WHICH PERSONS WERE DISQUALIFIED

Following are brief summaries of cases in which a witness was disqualified by the dead man's statute.

In a will contest, a devisee cannot testify on any matter in issue.⁹

In a proceeding to award orphans' allowance, the children are directly interested in opposition to the representative and are incompetent.¹⁰

In a suit for compensation for services rendered to the decedent, the plaintiff cannot testify, even on the preliminary proof of his or her book of account.¹¹

In a suit by an executrix for the decedent's services, the defendant is not competent.¹²

In a suit to specifically perform a contract to grant real estate to her, the suit being against the heir of the person breaching the contract, the plaintiff cannot testify.¹³

A joint maker of a note, who was joined as a defendant but not served with process, could not testify to matters which, if true, would relieve both him and the estate of his co-maker from liability.¹⁴

In a suit against a representative on a note, the plaintiff is not competent as to events during the maker's life.¹⁵

In a will contest, neither caveators nor the named executors (but see § 42.13 as to executors) may testify since the devisees, in effect, are defending and the heirs, in effect, are suing. (This was decided before exception 6 was added. See §§ 42.4 and 42.15.)¹⁶

A wife was not competent to testify that property sold by her husband belonged to her when she was claiming the proceeds of the sale from his administrator.¹⁷

A woman claiming to be the wife of the decedent, and hence an heir, cannot testify as to events and conversations before his death.¹⁸

The surviving partner is not competent, in a suit against an administrator, to testify as to the existence of the partnership since he has a direct interest in the outcome.¹⁹

In a suit to set aside a gratuitous conveyance, the grantees are not competent to testify as to the transaction, and this is so even though one of them was an heir and ostensibly within exception 6 (see § 42.15). The pecuniary interest of the offered witness was to sustain the conveyance, and hence she was essentially hostile, the estate having been made insolvent by the widow's allowance.²⁰

In a suit by an administrator to recover gifts causa mortis to a stranger, the decedent's husband (and heir) was not competent to testify for the administrator as to events before death.²¹

The attorney for a minor who is suing an executor would be incompetent if he or she were acting under a valid contingent fee contract.²²

A person claiming to be the donee of a savings and loan account is not competent to testify in a suit against the administrator.²³

In a will construction case, the plaintiff died after it was started, and the children of the plaintiff were not competent since they stood in the shoes of the plaintiff as beneficiaries and hence were interested in the outcome.²⁴

A stockholder in a corporation is not competent to testify in a suit to recover a debt owed to it by a decedent.²⁵

In a suit on a fraudulent sale of mining property, the executors of the deceased vendor have a legal right to be substituted as defendants, even though the effect will be to keep the plaintiff from testifying.²⁶

In a suit by heirs to set aside a gratuitous conveyance, the defendant, being interested in the outcome, is not competent,²⁷ and this rule applies to counterclaims.²⁸

No unfavorable inference is to be drawn from the failure of an incompetent witness to offer to testify.²⁹

In a suit against an administrator to defer or postpone the lien of a trust deed owned by the decedent, an adverse party may not testify.³⁰

A person whose deposition was taken but not introduced does not become competent to testify in his or her own behalf.³¹

In a suit by a widow for wrongful death and in which matter the executor was suing for predeath damages and funeral expenses, and the two cases were joined, the defendant could not testify, although he would have been qualified in the wrongful death aspect of the combined case.³²

A disclaimer by a person interested in a decedent's estate does not remove the disqualification.³³

The following cases applied the bar of the dead man's statute to the...