Estate of Burns
Opinion
lead Opinion
Coppey, J.
Construction of sections 1507 and 1508, Code of Civil Procedure, 638, 645, Code of Civil Procedure, and section 1880, subdivision 3, same code. Sections 1494, 2002, 2009, 2019, Code of Civil Procedure, considered in connection with affidavit to claim.
The reference herein was pursuant to section 1507, Code of Civil Procedure, and the rule for conducting such reference is found in the next section, 1508, Code of Civil Procedure, and in sections 638 to 645, of the same code. Hence it follows that subdivision 3 of section 1880 applies, incapacitating the claimant from testifying in his own behalf. This is “a *40 proceeding prosecuted against an executor or administrator upon a claim or demand against the estate of a deceased person,” and the claimant prosecuting may not testify “as to any matter of fact occurring before the death of such deceased person.”
I have read the brief of counsel for claimant with care, but it fails to enforce conviction that his view is correct. With equal care I have considered the opposing argument, and believe it states the law correctly. The testimony of claimant having been objected to in proper time and form, must be disregarded.