"No person offered as a witness shall be excluded by reason of his interest in the event of the action." (§ 398 of Code.)
"The last section shall not apply to a party to the action, nor to any person for whose immediate benefit it is prosecuted or defended." (§ 399.)
The witness was not a party to the action. The question then arises, whether it was prosecuted for the immediate benefit of the witness within the meaning of § 399 of the Code. The mortgage belonged to the estate of the intestate, and the money when collected would pass into the hands of the administratrix, in trust for the creditors of the estate, if any, and of the legal heirs of the deceased, subject to her claim thereon as the widow of the deceased. She alone was entitled to the possession of the money when collected; to be accounted for by her in the due course of administration upon said estate. The plaintiff alone had the direction and control of the action; it was her suit, and she alone was entitled to the money when collected. The witness could not be made personally liable for the costs in case the plaintiff failed in the action. *Page 296
It is true the estate could be charged with the costs, or the administratrix might be personally liable for such costs.
I do not think that the action was prosecuted for the immediate benefit of the witness so as to render him an incompetent witness for the plaintiff.
The judgment should be affirmed.
Judgment accordingly.