The opinion of the eonrt was delivered by
Steele, J.The paper UA,” was the plaintiff’s account rendered in the probate court in which he had charged his wards’ property with the “Stevens bills.” Now, when the defendant, by way of offset, asks the plaintiff to account to the estate of Stevens for these items, the paper UA” clearly is evidence as an admission by the plaintiff that his wards had had of Stevens the amount of these bills and that he as guardian was once liable for them. The original validity of the bills being established the burden was on the plaintiff to prove that he had paid them. The plaintiff was himself, by statute, an incompetent witness to prove payment to the intestate. His unsworn statement, made out of court, to his agent, Keyes, could certainly be no more competent than his testimony upon oath in court, unless the statement was part of the res gestae. It cannot be so considered. The statement was one made after the alleged payment, and while Keyes was aiding the plaintiff to prepare his account for presentation to the probate court and was not made while the bills were being paid to Stevens or anything being done to that end. Even if. it clearly appeared that the including of these items and the guardian’s account by Keyes depended on the plaintiff’s having claimed that they were paid, still the claim of payment would not be evidence of payment. The claim gave no significance ter an act, here, in issue, if indeed it explained any contemporaneous act. It had none of the elements which would justify us in treating the words as a portion of the res gestae or transaction in question. No point is made but the matter of the admissibility of this testimony was so passed upon as to be a proper subject of revision in this court, and for the error in receiving it,
Judgment is reversed and cause remanded.