Kinley

This is an appeal by the plaintiff, Mrs. Anna Kinley, from a judgment which she recovered from the administrator of the estate of James Kinley, deceased. The decedent and appellant were husband and wife.

The action was brought to recover the sum of $3,444, which appellant had turned over to decedent for investment in street bonds. Up to the time of his death he had made no report on the investment. Appellant presented a demand to the administrator for the said sum, which was disallowed upon the ground that under subdivision 3, section 1880 of the Code of Civil Procedure, appellant was incompetent to testify against the estate and that respondent was unwilling to assume the responsibility of waiving the incompeteney. This action followed.

Upon the trial, appellant offered herself as a witness, whereupon the following statements by the court and the respective counsel were made: “The Court: Is this such a claim against an estate as bars the claimant from being a witness under section 1880 of the Code of Civil Procedure ? Mr. O’Brien: I presume that the claimant would be disqualified as a witness under that section if an objection were made to her testimony. This matter, however,…