With a great deal of reluctance I concur in the judgment. The reasoning and the conclusion reached by the writer of the main opinion in this case are clearly stated and apparently are justified by the decisions of the Supreme Court, to which reference is made. It must be admitted that there is difficulty in distinguishing the instant case from the cases upon which reliance is placed. The distinction lies only in the fact that in the case before us, the proposition which I desire to stress is more pronounced.
In my judgment, in view of the provisions of Section 11495, General Code, the widow of the decedent should not have been permitted to testify in support of her claim as to the ownership of this ring.
While she was not an adverse party insofar as the style of the case is concerned, nevertheless she certainly is adverse to the estate, claiming this ring as against it.
Insofar as the decedent is concerned, there are substituted *Page 9 for him in this action, his estate and his personal representatives, and his will is the expression of his position and attitude with reference to his property.
Of course, I realize that without her testimony she probably could not have won and that an injustice might have been done her. But such possible injustice is less pronounced than is the situation where she is permitted to testify as to facts, and the only one who could dispute her claim is no longer in being. If there is any presumption, it is that the testator in making this will regarded this ring as his own property, yet here when he cannot contradict her statements the claimant is permitted to set forth her contention, which is certainly adverse to the provisions of the testator's will.